■ 


LETTER 


TO  A LAWYER  FROM  A FARMER, 


THE  RIGHT  OF  PRIVATE  CORPORATIONS  TO  TAKE 
PEOPLE'S  LAJVD  AGAINST  THEIR  WILL , 
WITHOUT  PAYING  FOR  IT. 


PORTSMOUTH : 


17V rvuoTjfcylo'*' 


f 


^3  5■  \ 

U 5 6 3 


J 


J 


3 


Sir: 


In  the  winter  of  January:  1841 : the  rabble  of  this  district  were  said 
by  some  to  be  stirred  up  by  certain  factious,  interloping  vagabonds,  to 
find  fault  with,  and  even  dare  to  ask  the  courts  of  New-Hampshire  to 
take  cognizance  of  some  proceedings  of  a railway  corporation.  It  was 
argued,  if  I be  not  mistaken,  by  the  railway  in  substance:  “ That  the 
instant  their  act  of  incorporation  receives  the  assent  of  the  governor, 
they  are  justified  under  it  in  taking  possession  by  force  of  any  body’s 
lands  or  whatever  else:  leaving  their  owner  to  get  paid,  for  being  unexpec- 
tedly kicked  out  of  his  own  door,  after  wading  through  some  process  or 
other  which,  if  he  can  go  up  to  Concord  and  find  somebody  that  ought 
to  be  there  at  home,  the  same  can  tell  him  what  it  is  if  he  know  himself  : 
that  is,  if  the  corporation  do  not  get  its  exchequer  emptied  by  somebody 
else  before  it  come  to  his  turn :”  The  railway  held  further:  “That  it 
was  not  material  by  any  means  that  the  act  of  incorporation  should  be 
absolutely  enacted  already  : as  kicking  a man  out  of  doors,  blowing  up 
his  house  and  running  locomotives  where  it  stood,  would  be  construc- 
tive notice  of  a prior  conveyance  : and  be  held  by  a court  of  equity  to 
be  violent  presumption  of  notice  to  him  that  the  General  Court  ought  to 
register  an  act  for  them  to  do  it  by,  some  future  day  : which  was  just  as 
good  as  a private  act  of  the  General  Court  specially  pleaded  (Do  not 
throw  the  letter  down  here,  my  learned  friend,  because  you  think  I am 
trying  to  be  ironical!  wait  and  hear  the  opinions  of  our  superior  court!)”: 
The  vagabonds  contended  on  the  other  side : “ That  the  right  of  the 
General  Court  itself  to  take  one  man’s  estate  and  give  it  to  another  with- 
out paying  him  for  it  they  had  made  search  for  and  could  not  find  it ; 
they  wanted  to  know  where  it  was:  that  as  far  as  they  could  make  out, 
the  General  Court  could  not  warn  a man  off  his  own  ground  without 
saying  they  would;  and  if  they  meant  to  pay  for  it,  it  could  give  them 
very  little  trouble  to  say  so : they  talked  something  among  themselves 
about  their  taking  off  estates  by  private  acts  in  such  hot  afternoons  in 
haytime,  and  vesting  them  in  other  people  without  letting  them  ever 
know  they  were  going  to:  they  said  they  had  heard  something  read  out 
of  a book  about  a Trial  by  Jury  : The  doctrine  that  a corporation  exists 
before  it  is  chartered,  they  wholly  protested  against ; and  said  was  as 
new  in  New-Hampshire  as  in  Westminster  Hall.”  The  High  Court  of 
Chancery  held  the  railway’s  doctrine  was  right  and  the  other’s  wrong. 

The  question  I wish  you  yourself  to  determine  for  me,  my  learned 
friend,  so  that  I could  understand  it,  is : “ whether,  by  its  acts  of  incor- 
poration, such  as  they  were,  this  corporation  had  a right  to  take  land  : 
et  cetera : against  its  owner’s  will,  without  paying  for  it  some  damages  : 
whether  these  damages  could  be  ascertained  by  any  way  but  a Trial  by 
Jury:  and  this  carried  on  in  the  way  clearly  set  forth  in  the  act? 


p i I 


4 


Whether  with  an  ending-place  fixed  by  law,  it  had  a right  to  do  it, 
against  the  owner’s  will,  in  a direction  to  any  other,  and  professing  an 
intention  not  to  run  their  railway  to  the  one  fixed  by  law  ? whether  if 
they  had  no  such  right,  the  owner  had  a right  to  ask  a court  of  equity  to 
stop  them  ? That  is  ; whether  the  estate  he  had  in  his  land  before,  and 
some  injury  he  was  going  to  sustain,  being  both  let  pass  undisputed  in 
the  argument,  our  courts  of  equity  had  power  to  refuse  an  injunction? 
U the  General  Court  can  grant  such  a right  of  way  for  thirty  years  ; it 
can  for  thirty  thousand  ; thirty  thousand  feet  deep:  for  all  practical  pur- 
poses, it  is  a conveyance  of  the  man’s  whole  estate  to  the  railway:  which 
should  surely  be  taxed  in  all  the  towns  and  counties  it  runs  through  ; or 
they,  the  last,  are  jockeyed  by  the  General  Court. 

What  has  led  me  to  write  this  letter  is  that  a friend  showed  me  a few 
days  ago  (I  saw  it  a year  ago  or  more,  but  suppose  1 did  not  read  it 
through,)  what  he  said  was  a copy  of  the  deliberate  opinion  of  our  whole 
court  of  equity  on  this  subject:  I at  first  took  it,  of  course,  fora  forgery 
got  up  to  burlesque  it;  but.  he  assured  me  it  was  genuine:  a smile  of 
sorrow  for  Carthage,  of  contempt  fin*  such  ignorance  in  a whole  court 
(it  ends  with  saying  : “In  this  result  the  several  members  of  the  court 
concur”)  succeeded  the  laughter:  and  to  both,  I am  willing  to  own,  one 
tear  of  the  deepest  pity. 

Our  High  Court  of  Chancery  asks  itself:  “what  constitutes  compen- 
sation ?”  and  answers  itself  thus  : “Must  it  in  all  cases  consist  of  actual 
previous  payment  in  some  general  tender  established  by  law,  or  may  it 
mean  such  general  provision  as  in  the  opinion  of  the  legislature  may  en- 
sure in  all  cases  a just  and  entire  compensation  ? If  the  legislature  have 
discretion  of  this  kind  as  to  the  means  of  compensation,  the  present  act 
furnishes  a sufficiept  justification  for  the  corporation,  the  same  authority 
which  gives  the  power  to  take  land  prescribes  a means  of  compensation. 
It  is  subject  to  the  delay  attendant  on  the  action  of  a committee,  and  of 
a Trial  by  Jury,  and  also  to  the  contingency  of  non-payment:  but  if  pay- 
ment should  not  be  ultimately  made,  the  condition  on  which  the  land 
was  entered  upon  might  be  considered  as  having  failed,  all  concerned 
in  the  acts  done  upon  the  land  would  in  such  case  become  trespassers 
ab  initio.  With  this  construction  of  the  acts  the  owner  would  either 
receive  compensation  for  the  land,  or  it  would  not  pass  from  him,  and 
for  all  intermediate  acts,  he  would  have  the  ordinary  common  law  rem- 
edy against  trespassers.”  The  ignorance  of  the  law  shown  in  this, 
not  only  stares  us  in  the  face : but  nothing  but  a miracle,  one  might 
think,  could  have  concentrated  so  much  of  it  in  so  few  words:  Every 
body  knows  that  the  legislature  has  no  “ discretion  as  to  the  means  of 
compensation”;  they  have'  to  a certain  extent  as  to  the  way  in  which 
the  owner  is  to  get  it : the  whole  court  takes  for  granted  that  the  Gen- 
eral Court  means  the  State  to  pay  if  the  corporation  do  not  ever,  which 
every  body  knows  is  not  true ; for  if  they  do  not,  the  act  is  good  for 
nothing  at  all:  and  after  this;  tells  the  world  about  “ trespassers  ab 
initio  and  common  law  remedies  against  trespassers”  being  “ compensa- 
tion” ! Mr.  Chief  Justice  Parker  ushers  such  doctrine  into  the  world: 


we  will  see  an  elaborate  opinion  of  his  concerning-  this : by  and  by.  1 
might  as  well  address  the  letter  to  him  at  once  ; for,  as  far  as  I can 
learn,  some  of  them  might  misunderstand  the  technical  terms  I shall 
be  obliged  to  use.  This  in  New  Hampshire : that  has  boasted  of  Weare, 
West,  Smith,  Mason,  Webster,  Bells,  Bartlett  and  so  many  more. 

Is  it  essential  to  exhibit  the  nature  of  this  question,  to  bring  forward 
authorities  to  the  effect  that  the  State  can  give  nobody  else  any  thing 
she  has  not  got  herself ; nor  that  she  cannot  devest  one  of  her  subjects 
of  his  estate  for  herself  without  giving  him  an  equivalent : that  conse- 
quently she  cannot  get  it  out  of  him  and  vest  it  in  another  without  doing 
it  either  ? No:  it  cannot  be:  not  even  with  this  unaccountable  non- 
sense before  me.  But,  when  she  devests  him  of  his  estate  to  give  it  to 
a private  corporation,  the  people  and  their  representatives  hold  one  doe 
trine  on  the  principles  of  the  process  and  their  courts  another.  We 
hold  that  the  State  means  the  corporation  shall  pay  the  debt  themselves 
whether  or  no.  Our  courts  hold  that  she  assumes  the  debt  for  her  own. 
They  must  hold  it.  So  long  as  a contingency  is  left ; there  is  no  estate 
devested.  We  will  explain  this  more  at  length  by  and  by.  If  the  cor- 
poration can  and  will  discharge  it ; well  and  good  : if  not,  the  learned 
Courts,  pretty  much  throughout  the  United  States,  whether  they  know  it 
or  no  themselves,  that  is  none  of  my  business,  have  always  held  that 
the  government  means  to  be  understood  that  the  State  shall.  They  con- 
sequently hold : “ That  the  inexorable  rules  by  which  whatever  any 
body  else  owes  is  determined  in  law, are  released  and  suspended  in  favour 
of  private  corporations  like  this  ; when  they  seize  the  estate  of  one  of 
the  State’s  subjects : for  it  is  the  State  contracts  with  him  not  the  private 
corporation.”  This  is  the  substance  of  the  argument.  It  is  of  no  use 
to  say  that  such  doctrine  would  be  met  by  the  General  Court  or  the 
people  with  a shout  of  derision:  that  the  courts  assume  wbatq|p» every 
legislature  swears  it  never  means,  and  nobody  ever  supposed  they  ever 
did.  The  General  Court  must  take  upon  itself  that  the  owner  shall 
somehow  be  paid  from  the  beginning  or  no  estate  is  devested.  Of  his 
estate  the  humblest  or  the  proudest  subject  may  be  devested,  whenever 
a legislative  power  chooses  to  incorporate  half  a dozen  adventurers, 
without  getting  a copper  for  it,  without  ever  hearing  he  was  going  to 
lose  it,  by  a fiction  of  law,  which  is  an  absolute  imposture.  Some  peo- 
ple would  say  such  a government  was  the  most  despotick  in  the  world; 
if  it  be;  it  is  Harlequin  that  fills  the  throne:  with  the  crown  on  his 
head  and  the  sceptre  in  his  hand,  and  a court  of  law  for  his  clown  ; to 
tell  us  what  he  says  and  see  that  it  is  done. 

Without  regarding  this  postulate  that  our  courts  must  assume  (they 
cannot  help  it)  I will  first  examine  with  you,  my  learned  friend,  what 
this  corporation  is.  This  railway  is  a private  corporation.  The  ex- 
ploded fiction  of  the  ancient  common  law,  exploded  in  England  itself  as 
I will  show  you  by  and  by,  that  it  is  instituted  by  our  sovereign,  here 
the  people  of  New-Hampshire,  for  the  public  good,  however  generally 
or  advantageously  diffused  the  uses  may  be  to  which  it  may  dedicate  its 
franchise,  give  it  no  rights  from  it,  except  that  of  not  dying,  material  to 


6 


the  present  inquiry,  that  the  General  Court  could  not  give  just  as  well 
to  you  or  me.  The  uses  for  which  it  implored  its  franchise  are  not, 
however,  of  so  very  publick  a nature ; but  it  means  to  and  can  restrict 
them  to  whatever  it  pleases:  and  of  course  we  know  it  was  implored 
for  the  express  and  single  purpose  of  private  emolument.  Had  they 
owned  all  their  land  their  railway  goes  over,  with  a right  to  make  dan- 
gerous our  highways;  all  that  the  publick  can  want  them  to  do,  they 
could  have  done  before  it  was  given,  and  had  a right  to  do  without  a 
charter  at  all.  The  estate  that  they;  get  from  their  charter  in  the  land 
they  take,  becomes  not  the  publick’s:  it  is  turned  into  their  own  private 
fortune  as  much  as  yours  if  you  have  one.  Were  the  uses  to  which 
this  railway  is  meant  to  be  be  put  never  so  publick,  it  is  still  left  initself 
a simple  private  corporation  at  common  law.  The  General  Court’s 
choosing  to  accomplish  purposes,  in  which  the  publick  is  interested  (be 
they  never  so  publick,  it  makes  no  difference  ; all  corporations  for  the 
most  narrowed  capricious  private  purposes,  expressed  in  their  acts,  a 
singing-school  or  a play-house,  are  equally  by  the  same  fiction  of  law 
instituted  for  the  publick  good,)through  an  aggregate  corporation,  instead 
of  you  or  me,  my  learned  friend,  does  not  make  it  a publick  corporation; 
the  General  Court  can  hand  over  the  high  power  of  the  State  to  take 
your  land  for  publick  purposes  against  your  will,  to  me  as  well  as  to 
them:  to  be  used  by  me  alone  with  the  same  boundless  discretion,  with 
my  disinterestedness  and  my  compassion,  as  it  can  hand  it  over  to  them 
to  use  at  theirs.  In  all  disputes  concerning  property,  the  same  prece- 
dents,the  same  law,  as  far  as  we  are  concerned  now,  and  the  same  estab- 
lished principles  of  law  must  govern  the  judgments  with  regard  to  what 
they  have  a right  to  do,  or  must  be  made  to  do,  as  with  regard  to 
what  I then  can  or  must  do.  The  right  the  State  has  kept  to  her- 
self inMdteir  charter  does  not  make  it  less  a private  corporation  : it 
is  to  buy  it ; not  to  take  it  without : and  this  right,  our  courts'  now- 
adays hold,  the  State  had  without  expressing  it.  The  State,  nor  peo- 
ple of  New-Hampshire,  gets  no  property  in  the  estate  this  railway 
lakes  under  this  franchise  to  take  land  against  its  owner’s  will  or  use  it  : 
which  is  just  the  same  thing.  The  publick’s  very  right  to  thoroughfare 
is  practically  at  the  pleasure  of  the  corporation.  And  will  the  State 
really  pay  for  this  estate,  if  the  railway  will  not  or  cannot  ? Why,  they 
tell  me  the  thing  was  tried  : it  was  asked  to  pay  up  for  another  railway 
in  full  operation;  but  the  corporation  said  it  would  not  pay  ; for  it  could 
not ; it  was  bankrupt.  The  General  Court  told  the  petitioner:  “ his  los- 
ing his  estate  was  no  concern  of  theirs ; they  were  not  answerable, 
neither  was  the  State  answerable  for  the  value  of  the  estate  they  took 
by  force  from  him  and  gave  to  a private  corporation : it  was  no  agent 
they  had  substituted  for  themselves ; he  must  look  to  an  action  at  com- 
mon law  : it  was  simply  a quarrel  about  private  property  between  two 
people,  with  which  the  State  had  no  concern  after  the  act  was  made !” 
Without  they  repeal  its  charter  (and  without  a right  to  do  that  expressed 
in  the  act,  they  could  not  do  that  under  a judgment  we  shall  see:  and, 
although  the  State  assumes  the  right  to  itself  to  take  the  private  property 


7 


of  these  corporations  when  it  thinks  proper,  at  its  value,  it  gravely 
receives  the  right  to  take  this  one’s,  on  paying  it  a sum  doubling  about 
every  ten  years  at  least  from  its  beginning,)  will  this  railway  let  the  Gen- 
eral Court  take  the  very  land  it  has  devested  and  vested  in  them,  and 
devest  them  of  it  and  give  it  to  another  railway,  without  the  last’s  pay- 
ing them  for  such  estate  as  they  have  in  it  ? Or  would  they  say  that 
the  General  Court  could  not  revoke  its  grant  of  the  franchise  : and  an 
estate  in  a franchise  conferred  by  a General  Court  is  better  than  a fee- 
simple  or  an  allodial  estate  the  people  of  New-Hampshire  have  in  their 
lands,  and  had  before  they  made  the  constitution  or  set  up  the  General 
Court  at  all?  Is  it?  Would  it  let  the  General  Court  take  it  for  the 
State’s  own  use  without  compensation  ? And  would  it  not  be  trium- 
phantly sustained  by  our  courts  and  those  of  the  United  States  ? Not 
for  the  loss  of  the  worth  of  their  franchise  : not  for  that  only  : but  their 
estate  in  this  very  land  or  on  it  ? A private  estate  they  are  assumed  at 
common  law  to  have  purchased  : somebody  had  it  before.  The  State’s 
gift,  then,  of  what  it  did  not  before  own  (for  as  we  shall  see,  the  State’s 
own  estate  in  its  use  is  inseparable  from  the  certainty  of  compensation) 
is  better  than  fee-simple,  is  it  ? (Do  we  hold  our  lands  of  the  govern- 
ment of  the  State,  or  of  the  State  itself;  that  is,  of  each  other?  Un- 
questionably, we  do  of  neither : they  are  strictly  allodial : as  much  so 
as  in  Norway.  They  were  always  held  so  till  this  Massachusetts  hum- 
bug about  “ eminent  domain”  came  along.  Unquestionably  we  hold 
them  subject  to  be  taken  for  her  purposes  by  herself : but  because  we 
gave  that  right  to  her  government ; not  because  they  ever  belonged  to 
her.  She  creates  my  right  to  compensation  in  the  same  instant  she 
takes  my  estate : the  two  estates  are  inseparable  from  each  other  in 
idea.)  It  would  be  absurd  to  accumulate  authorities  that  these  are  pri- 
vate corporations  and  all  their  property  private  property : for  the  less 
learned  than  yourself,  my  learned  friend,  there  is  at  hand  to  be  consulted 
a little  book,  fortunately  published  to  us  by  “ Timothy  Farrar,  Esquire, 
Counsellor  at  law,”  purporting  to  be  a report  of  the  case  of  the  “Trustees 
of  Dartmouth  College  against  William  Woodward”  : in  which  an  inves- 
tigation of  the  nature  of  corporations  will  be  found,  the  ablest  I know 
of;  and  accompanied  with  references  to  innumerable  cases  which  each 
may  consult  according  to  his  opportunities.  Read  the  arguments  of  Mr. 
Jeremiah  Mason  and  Mr.  Daniel  Webster  and  the  admirable  opinion  of 
Mr.  Justice  Joseph  Story  ! If  indeed,  in  this  celebrated  case,  the  most 
important  except  one  ever  determined  in  our  country,  these  great  men 
so  satisfactorily  proved  that  a corporation,  created  wholly  for  publick 
purposes  ; and  more  vital  ones  to  every  body  than  riding  to  Newbury, 
the  education  of  the  people  and  the  propagation  of  the  gospel;  express- 
edly  by  the  crown  for  the  benefit  of  his  province  of  New-Hampshire  ; 
with  no  intention  on  the  part  of  the  men  that  gave  it  every  thing  it  had 
of  their  own  emolument ; when  who  they  were  nobody  knew,  or  if  they 
did,  they  were  dead  and  gone,  and  their  heirs  unknown  ; if  it  was  held  ; 
against  the  statutes  of  our  State  and  the  judgments  of  its  courts  ; and 
(I  think  most  justly)  determined  : That  such  a corporation  was  a pri- 


vate  corporation  and  its  property  private  property  : we  need  not  hesitate 
to  pronounce  upon  the  nature  of  this  corporation,  what  it  is  at  common 
law : got  up  solely  to  make  money  by  and  the  property  in  whose  fran- 
chise is  sold  from  hand  to  hand  by  a stock-broker  every  day  in  the 
market.  This  corporation  then  is  a private  corporation  : and  as  all  its 
property  of  every  sort  they  say  themselves  is  private  as  soon  as  it  is 
theirs : its  property  in  its  franchise,  nor  the  property  it  gets  through  its 
franchise,  nor  any  sort  of  a controversy  it  may  carry  on,  solely  on  its 
own  account,  concerning  this  property  under  its  franchise,  are  of  a pub- 
lick  nature,  more  than  yours  or  mine.  A contrary  doctrine  would  in  the 
words  of  Mr.  Justice  Story  be  “ utterly  irreconcileable  with  the  decis- 
ions, the  whole  current  of  them,  since  the  time  of  Lord  Coke,  and 
undermine  the  most  solid  foundations  of  the  common  law as  this  rail- 
way set  out  to  blow  up  Andrew  Huzzy’s  house  against  his  will,  without 
paying  him  a copper,  under  a charter  not  to  go  within  some  miles  of  it 
at  the  time  that  it  did  so.  In  the  well-contested  case  of  Charles  River 
Bridge  against  Warren  Bridge  in  another  State,  it  was  argued  with  great 
force  by  the  present  Chief  Justice  of  that  State  and  the  present  Secre- 
tary of  State  of  the  United  States;  these  justly  celebrated  men  held  : 
“ That  not  only  all  the  money  they  had  got  out  of  the  publick  in  fifty 
years  before  was  private  property,  which  by  an  article  of  their  bill  of 
rights,  to  say  nothing  of  the  constitution  of  the  United  States,  their  Gen- 
eral Court  could  give  no  authority  to  a private  corporation  to  take  with- 
out a simultaneous  (their  opinions  and  mine  are  the  same)  provision  for 
compensation  : but  that  the  General  Court  had  no  power  to  determine 
the  nature  of  the  compensation,  the  amount  of  it ; nor  could  the  dama- 
ges be  ascertained  but  by  agreement  or  the  single  way  of  a Trial  by 
Jury  (the  same  article  is  in  their  bill  of  rights  that  is  in  ours  ):”  They  not 
only  held  this  ; but  they  also  held : “ That  all  the  money  they  ever  meant 
to  get  out  of  us,  twenty  years  after,  was  then  private  property  already  : 
that  their  right  to  prospective  toll  was  private  property  too,  which  their 
General  Court,  nor  the  general  government,  nor  another  private  corpo- 
ration, nor  any  body  else,  could  take  from  them  again ; could  diminish 
or  impair  by  giving  the  publick  another  highway,  without  simultaneous 
provision  for  compensation,  to  be  ascertained  only  by  agreement  or  a 
Trial  by  Jury.”  The  law,  they  said,  was  clear:  they  must  have  this 
given  them  by  the  same  act  which  carried  off'  their  estate,  or  they  had 
still  a right  to  make  every  body  that  wanted  to  go  into  Boston,  pay  them 
toll  or  else  swim  across  the  river.  So  said  one  of  the  Justices:  another 
thought  they  ought  to  let  people  use  their  own  boat ; the  other  two 
agreed  with  him  and  thought  they  had  no  right  to  make  him  swim : and 
that  consequently  that  if  he  had  a right  to  a boat,  without  paying  them, 
he  might  as  well  have  another  bridge  without  paying  them  either:  but 
Mr.  Justice  Story  proved  the  whole  that  the  Chief  Justice  and  Secretary 
urged,  to  be  clear  in  law:  pretty  much  all  the  court  of  the  United  States 
said  so  too ; but  unfortunately  one  of  them  said,  “ that  though  the  Mas- 
sachusetts General  Court  was  attempting  a highway  robbery,  it  was  none 
of  their  business” : and  the  thing  fell  through.  If  we  had  other  opin- 


9 


ions  than  we  have  of  the  nature  of  these  private  corporations,  we  must 
give  them  up  to  such  a phalanx  of  great  men.  It  is  not  to  be  contro- 
verted in  this  day,  that  this  is  a private  corporation;  and  all  its  own  con- 
troversies concerning  its  property  are  controversies  concerning  property, 
and  suits  between  two  or  more  persons.  It  it  carry  on  others,  in  behalf 
of  the  State,  she  must  be  answerable  for  their  contracts  if  they  cannot 
or  will  not  make  them  good:  if  she  do  not  mean  to  be  answerable  ever, 
she  can  devest  none  of  her  subjects  of  his  estate,  till  in  some  other  way, 
compensation  by  her  laws  she  absolutely  assure  him. 

The  Lord  High  Chancellor  of  New-Hampshire  goes  on  to  say:  ‘ Should 
the  rule  be  established  that  when  private  property  is  taken  ior  publick 
uses,  previous  compensation  must  in  all  cases  be  made,  it  would  in  many 
instances  destroy  all  beneficial  use  of  such  property,  and  would  render 
the  interest  of  the  individual  citizen  altogether  paramount  to  that  of  the 
publick.”  He  has,  as  1 will  show  by  and  by,  as  far  as  this  case  is  con- 
cerned, the  full  powers  and  obligations  of  the  Lord  Chancellor  of  England 
by  statute.  It  is  common  for  him,  I believe,  to  ask  for  the  judgment  of 
the  court  of  King’s  Bench,  on  difficult  questions  of  law.  Ours  means 
here  by  “ the  publick”  this  railway  : and  by  “ the  individual  citizen”  the 
owner  of  the  land.  In  a case,  which  established  the  law  there,  and 
similar  doctrine  was  sustained  by  Lord  Chancellor  Eldon  and  Lord 
Chancellor  Lyndhurst,  and  also  on  appeal,  by  the  House  of  Lords  ; 
Charles  Abbott,  Lord  Tenterden,  whom  I believe  to  have  been  full  as 
good  a lawyer  as  Mr.  Chief  Justice  Parker,  says:  One  of  these  corpo- 
rations for  a publick  highway  is  “ a company  of  adventurers,”  and  the 
owner  of  lands  near  is  “ the  publick  :”  and  : “ That  any  ambiguity  of 
the  terms  of  the  contract  (!)  must  operate  against  the  company  of  adven- 
turers (!)  and  in  favour  of  the  publick  (!):  The  proprietors  therefore 
can  claim  nothing  which  was  not  clearly  given  them  by  the  act :”  by 
“ contract”  he  means  the  act  of  incorporation  : as  Lord  Eldon  shall 
explain  by  and  by.  Our  Chief  Justice  here  holds  that  the  railway  is 
the  publick : and  he  also,  as  I have  said,  holds  without  knowing  it,  that 
the  estate  vests  as  soon  as  the  act  is  made,  because  the  States’  intention 
to  see  the  owner  paid  is  not  to  be  questioned  in  a court  of  law  : he  must 
hold  it ; I can  hardly  believe  him  to  have  read  the  nonsense  about 
“ trespassers  ab  initio  and  1 will  produce  his  own  elaborate  opinion 
about  it  by  and  by.  This  is  though  the  State  never  has  paid  in  a single 
instance  that  we  know  of;  though  there  is  no  way  to  make  her  pay  ; 
though  she  tells  us  in  the  acts  to  look  to  them  alone;  and  plainly  tellsms 
that  if  we  do  not  in  a certain  time,  whether  they  pay  or  no,  we  shall  not 
be  paid  at  all.  I should  like  this  doctrine  that  the  State  pledges  her 
honour  for  the  railway’s  damages  promulgated  in  the  General  Court. 
Every  body  knows  she  does  not ; and  that  they  are  to  be  recovered  by 
an  action  at  law  against  the  railway  or  not  at  all.  If  by  a fiction  of  law, 
which  is  a counterfeit  and  imposture,  every  one’s  estate  may  be  vested 
in  adventurers  without  compensation  or  assurance  of  it;  for  their  purpo- 
ses simply  ; without  the  owners  or  the  district  of  country  interested  in 
the  question’s  having  heard  such  a thing  was  dreamed  of,  till  Terence 

2 


10 


O’Reilly,  Lawrence  O’Rourke,  Samuel  Hale  and  Patrick  Maguire  show 
themselves  and  say  they  are  the  State,  and  say  with  truth  that  Mr.  Chief 
Justice  Parker  says  so  too  ; a trick  of'  despotism  a Feudal  king  would 
not  have  played  off  in  England  five  hundred  years  ago,  without  a writ 
of  “ ad  quod  damnum”  to  save  his  own  rights  if  nobody’s  else  ; he  would 
have  \et  us  know  they  were  coming  somehow  or  other : when  not  ten 
peop  le  hear  the  act  read  in  a July  afternoon  : if  this  be  law  ; against  the 
judgments  of  our  courts  in  similar  cases;  against  the  General  Court’s 
own  words;  against  the  sense  of  every  man  in  the  community  ; then  we 
do  live  under  a government  the  most  insecure  and  the  most  preposterous, 
the  most  outlandish  and  the  most  ludicrous.  Without  regarding  farther 
this  fiction  of  law,  now,  having  found  out  what  a railway  is,  let  us  see 
what  an  article  of  our  bill  of  rights  is. 

Our  bill  of  rights,  so  far  as  it  do  not  contradict  the  constitution  of  the 
general  government  I hold  to  be  the  supreme  law  of  the  land:  irreversi- 
ble by  statute,  llow  far  the  people  have  a right  to  alter  it  themselves  is 
not  very  clear:  but  it  is  certain  that  till  they  do,  the  plain  meaning  of 
its  language  is  not  only  irreversible  by  statute  : it  is  equally  so  by  pro- 
visions of  the  constitution  of  New- Hampshire,  the  judgments  of  her 
courts  or  the  ancient  common  law.  The  notion  of  some,  with  respect 
to  the  English  bill  of  rights, that  it  only  proclaimed  more  publickly  what 
was  law  before,  that  courts  should  look  to  the  law  itself  for  what  they 
were  sure  to  find  in  it,  will  not  do  here.  Ours  was  not  meant  to  inform 
the  world  what  the  law  was  ; but,  so  far  as  it  goes,  to  give  orders  what 
it  should  be  thereafter.  It  is  the  expressed  words  of  the  contract  of  the 
people  of  New-Hampshire  that  they  will  not,  all  the  rest  of  them  together, 
infringe  nor  impair  certain  rights  of  the  humblest  man  among  them,  nor 
suffer  their  government  to  do  it  either.  All  powers  common  to  other 
governments,  all  despotick  power,  be  it  never  so  right  in  appearance,  so 
convenient  or  necessary  to  them  that  temporarily  have  the  government 
in  their  hands,  every  consideration  of  publick  convenience  or  necessity, 
must  fall  to  the  ground  in  conflict  with  them:  they  are  not  in  the  bond. 
As  the  English  bills  of  rights,  there  are  divers  of  them,  was  meant  to 
keep  the  crown  steadier  than  it  might  otherwise  be : some  people  might 
see  in  ours  a disposition  to  secure  each  subject  from  the  caprices  of  his 
sovereign.  I will  not  argue  this  question  : not  being  one  of  those  that 
believe  much  that  when  people  make  a bond  of  their  own  “special  grace, 
certain  knowledge  and  mere  motion,”  a bond,  made  of  their  own  accord, 
not  to  do  whatever  they  have  a mind  to  whenever  they  please,  they  will 
keep  it  longer  than  they  choose,  it  is  certain  that  the  most  successful 
attempts  to  set  right  the  carelessness  or  nullify  the  caprices  of  our  various 
sovereigns  have  been  made  through  what  is  a bill  of  rights  in  the 
constitution  of  the  general  government.  Never  having  been  in  England, 
in  my  life,  much  more  than  a twelvemonth,  1 do  not  know  what  their 
publick  thinks  of  theirs : but  no  practice  or  custom,  however  long 
established,  of  the  legislative,  executive  nor  judicial  power,  can  sustain 
itself  here  against  the  express  words  of  ours.  The  most  momentous 
power  in  which  our  court  of  the  United  States  has  been  by  itself  installed, 


it  authoritatively  exacts  from  what  is  a bill  of  rights.  If  ours  did  contain 
more  than  was  called  for;  if  the  scrivener  were  too  officious  ; with  this 
our  courts  have  nothing  to  do : they  have  no  excuse  for  getting  out  of 
their  road  when  it  is  before  their  eyes  written  in  such  large  and  legible 
letters  on  such  a guideboard.  There  would  be  no  doubt  of  the  obligation 
of  English  courts  to  refuse  to  acknowledge  a statute  contradictory  to  any 
of  theirs,  if  they  had  power  to  do  it:  this  our  courts  have  : they  must 
regard  ours,  as  it  is  clearly  set  forth  in  express  words,  in  its  direct 
meaning  and  no  other,  as  the  supreme  law  of  the  land.  In  the  great 
case  of  Dartmouth  College  this  last  doctrine  was  carried  so  far,  that  it  is 
generally  understood  that  the  court  interpreted  a clause  against  the 
meaning  of  the  people  that  established  it : wholly  by  the  express  words. 
Though  the  General  Court  may  have  meant,  in  this  case,  an  atrocious 
and  footpad  robbery,  and  the  other  court,  when  it  took  to  the  highway 
with  them,  did  not  know  enough  of  the  usages  of  the  road  themselves 
to  show  the  others  how,  and  their  judgment  was  contrary  to  law:  still, 
keeping,  like  the  court  of  the  United  States,  such  a mouse-trap  always 
set,  I do  not  contend  for:  but  in  the  interpretation  of  our  bill  of  rights 
and  the  consistency  of  the  General  Court’s  statutes  with  it,  our  courts 
are  not  to  be  governed  by  deference  to  a coordinate  power:  they  have 
no  more  power  to  construe  statutes  favourably  to  the  power  of  the 
General  Court  than  they  have  to  their  own ; to  transfer  the  judicial  power 
from  themselves  to  them  ; to  watch  and  sanctify  the  caprices  of  other 
people : they  have  higher  interests  to  protect  and  nobler  duties  to  per- 
form. The  people  of  New-Hampshire’s  notion  of  their  bill  of  rights  is 
sufficiently  set  forth  when  they  close  with  the  general  orders  of  the 
thirty  eighth  article.  It  is  clear  that  all  property  this  railway  can  ever 
take  or  lose  on  its  own  account, it  takes  and  loses  as  private  property:  and 
all  its  controversies  concerning  its  property  must  be  determined  in 
accordance  with  the  bill  of  rights.  Except  then  the  State,  when,  with 
however  publick  a purpose  in  view,  it  obliges  us  to  sell  our  land  or  any 
thing  else  to  them,  do  clearly  assure  us  that  she  will  pay  for  it 
if  these  private  corporations  do  not : the  damages  they  are  to  pay,  its 
valuers  a controversy  concerning  property  between  private  persons, and 
can  be  determined  in  no  way  but  what  is  allowed  by  the  twentieth 
article  of  our  bill  of  rights. 

The  twentieth  article  is  in  these  words.  “In  all  controversies  con- 
cerning property  and  in  all  suits  between  two  or  more  persons,  except 
in  cases  in  which  it  has  been  heretofore  otherwise  used  and  practised, 
the  parties  have  a right  to  Trial  by  Jury,  and  this  method  of  procedure 
shall  be  held  sacred,  unless  in  cases  arising  on  the  high  seas  and  such  as 
relate  to  mariner’s  wages,  the  legislature  shall  think  it  necessary  here- 
after to  alter  it.”  This  is  the  supreme  law  of  the  land : indeed  the  arti- 
cle says  it  is  a natural  right  of  one  of  our  race : not  that  it  gives  it  to 
him  ; but  that  he  has  it:  the  law  must  be  obeyed.  Let  me  examine  this 
article.  If  the  people  of  New-Hampshire  had  tried  to  express  themselves 
in  a way  absolutely  incapable  of  a double  meaning,  they  could  not  have 
been  more  successful  than  they  are.  They  clearly  promulgate  and 


12 


decree  that,  with  the  exceptions  expressed  in  the  article  itself  and  no- 
where e'se,  in  all  controversies  concerning  property  and  suits  between 
parries,  neither  subsequent  practice  of  courts  of  law,  ancient  practice  of 
the  common  law  elsewhere,  nor  statutes  of  the  General  Court,  shall 
ever  supersede  (they  say  he  has  it  already  without  a bill  of  rights,  the 
majority  of  the  people  could  not  take  it  away,  if  they  made  a new  con- 
stitution); shall  ever  supersede  the  right  to  aTrial  and  the  right  to  aTrial 
by  Jury.  How  far  that  conflicts  with  the  jurisdiction  of  the  Lord  Chan- 
cellor of  New- Hampshire  I will  not  enquire  in  this  letter;  it  not  being 
material  to  the  question.  But  if  the  right,  whatever  it  may  be,  the  Gen- 
eral Court  gives  to  these  private  corporations  to  my  land  against  my 
will,  the  very  franchise  itself,  be  as  much  private  property  as  my  right 
10  my  freehold ; and  they,  and  the  courts  with  them,  contend  it  is ; the 
damages  the  corporation  is  to  pay  for  devesting  rue,  are  a controversy 
between  me  and  them,  not  the  State,  concerning  property  and  suits 
between  parties.  The  State  does  not  pledge  her  honour  to  pay  my  cor- 
relative and  coeval  claim  to  its  price:  such  fictions  of  law  will  not  do  in 
the  nineteenth  century  here  more  than  in  England  : it  is  too  late  in  the 
day.  “ Hsec  ludibria  religionum,”  as  my  friend  Pontius  the  Samnite 
told  the  Roman  Consul  begging  off  on  a point  of  law,  “ non  pudere  in 
lucem  proferre,et  vix  pueris  dignas  ambages  senes  ae  consulares  fallen- 
dse  fidei  exquirere?”  They  are  in  the  dominion  of  this  article,  if  it 
cannot  be  shown  that  a different  sort  of  Trial  was  established  previously 
to:  1792:  or  rather:  1784:  when  the  article  was  established  law  as  now; 
and  be  shown  what  sort  of  Trial  there  was.  Some  Trial  there  must  be 
by  the  constitution  of  the  United  States.  I will  throw  into  another 
paragraph  the  consideration  of  whether  this  property,  this  right  to  take 
the  land  against  its  owner’s  will,  is  in  this  railway,  fairly  vested,  till  the 
Trial  by  Jury  and  a Trial,  if  the  General  Court  ever  attempted  to  vest  it 
in  them  before : or  at  any  rate  : till  the  owner’s  right  to  his  Jury  have  so 
much  accorded  to  it,  that  he  has  some  chance  to  know  when  he  is  to 
get  it,  to  say  nothing  of  his  compensation : all  I have  to  do  with  now  is 
whether  the  supreme  law  of  the  land  gives  him  the  right  to  a Trial  by 
Jury  or  no  at  all.  I hold  that  he  has  a right  to  it,  under  this  article, 
which  neither  Railway,  General  Court  nor  any  other  court  can  get  out  of 
him,  without  it  be  shown  without  doubt,  there  can  be  no  constructive 
loss  of  the  Trial  by  Jury,  that  he  would  not  have  had  it  previously  to 
the  time  I have  named  : it  must  be  shown  without  ambiguity  or  evasion: 
the  contrary  custom  must  be  described  with  accuracy  and  exactness  and 
clearly  proved.  The  language  of  these  acts  might  be  thought  to  be  that 
the  Trial  by  Jury  was  a matter  of  favour  on  the  part  of  the  General  Court 
to  its  bumble  subjects : the  doctrine  promulgated  by  the  Courts  in  this 
judgment  might  be  thought  to  be  that  it  was  of  no  consequence  at  all : 
the  language  of  the  bill  of  rights  is  that  “ it  shall  be  held  sacred :”  it  says 
nothing  about  Trial  by  committee  of  men  named  through  the  legislative 
power:  and  the  people  mean  to  have  implicit  obedience  to  the 
precepts  they  give.  Even  in  Massachusetts  her  courts,  here,  now 
lately,  have  said  that  they  could  not  assume  an  intention  on  the  part  of 


13 


the  General  Court  to  take  it  away.  The  same  courts  held  the  same 
doctrine,  more  than  forty  years  ago  in  a suit,  both  parties  to  which 
quarrelled  about  property  in  franchises:  and  this  doctrine  was  held  by  a 
court  composed  of  men  of  the  greatest  eminence.  The  General  Court 
had  provided,  and  within  a time  too,  if  1 recollect  right,  1 have  not  the 
book,  prescribed  in  the  act,  that  a wealthy  corporation  should  pay  full 
compensation  for  any  injury  sustained  by  an  humble  person,  not  to  his 
lands  but  to  the  future  proceeds  of  his  franchise  (is  a franchise  better 
than  fee-simple?)  in  a way  full  as  unobjectionable  as  in  this  railway’s  act: 
the  court  never  troubled  themselves  about  the  General  Court’s  neglect- 
ing to  give  him  a Trial  by  Jury  to  determine  the  damages  to  his  fran- 
chise ; they  told  him  it  was  his  private  property  : and  that  no  act  of  the 
General  Court  could  take  away  his  right  to  a Trial  by  Jury  to  ascertain 
them.  As  this  corporation  was  a publick  highway  and  indeed  both,  was 
it  clearly  not  the  opinion  of  that  court,  that  these  things  are  in  the 
dominion  of  this  article  ? Had  such  a judgment  been  solemnly  pro- 
uoimced  (the  thing  was  not  disputed  there)  in  New-Hampshire,  there 
would  be  no  place  for  farther  argument.  It  will  be  asked  : why  I raise 
a ghost  to  attack  it?  That  it  is  not  disputed,  it  will  be  said,  that  he  has 
a right  to  a Trial  by  Jury.  It  is  on  the  high  road  to  being  disputed, 
when  every  such  act  exposes  the  owner  to  the  risk,  and  a terrifying  one 
to  very  humble  persons,  of  a large  sum  of  money  to  pay,  for  getting  as  a 
boon  what  belongs*  to  him  already ; one  would  think : when  the  Gen- 
eral Court  drives  a subject  off  his  land,  at  its  own  pleasure,  and  says  he 
shall  be  paid  for  it  by  somebody  else,  if  he  do  not  break  first,  at  some 
future  time  named  by  them,  a price  for  it  determined  by  people  named 
through  themselves;  without  he  is  willing  to  run  the  risk  of  a suit  at 
law  with  a gigantick  corporation:  when  anything  is  tampered  with, 
without  sufficient  reason,  that  the  meanest  subject  thinks,  and  the  bill  of 
rights  says  is,  his  “ inestimable  privilege :”  and  the  records  of  courts  of 
quarter  sessions,  a century  old,  are  rummaged  to  swindle  him  out  of  his 
Trial  by  Jury  on  so  large  and  increasing  a scale  now.  The  thing  is  too 
plain  : the  proposition  concerning  the  Trial  by  Jury  must  be  agreed  to 
as  soon  as  stated : if  this  corporation  be  a private  corporation,  and  if  its 
disputes  about  damages  be  what  1 have  said  : if  the  bill  of  rights  be  what 
I have  said  too  : This  owner  of  the  land,  till  it  be  shown  that  he  would 
not  have  had  this  right  in  the  year  : 1784  : till  it  be  shown  circumstan- 
tially and  satisfactorily  proved ; had  a right  to  a Trial  by  Jury : and  of 
this  right  no  practice  of  courts  since,  no  common  law  elsewhere,  and  no 
act  of  the  General  Court,  till  it  “ expressly  suspend  the  laws  of  the  State,” 
can  strip  him  : neither  by  implication  nor  even  in  direct  words. 

To  show  that  he  had  no  such  right,  it  must  be  completely  proved, that 
in  the  colony  or  State  of  New-Hampshire,  the  doctrine  that  the  damages 
for  a private  corporation’s  taking  land  in  this  way,  without  its  becoming 
the  State’s  and  her  guarantying  their  payment,  and  without  a Trial  by 
Jury,  some  time  or  other,  was  acknowledged  by  its  courts.  Where  is 
the  judgment  to  that  effect  of  a court  of  record  ? The  custom  with 
respect  to  town  and  country  roads  would  not  prove  it : nobody  will 


14 


pretend  that  their  franchises  are  private  property  or  their  damages  con- 
troversies concerning  property  between  private  persons.  But  by  the 
very  highway  act : “ anno  regis  Georgii  (primi)  quinto  (:  1720  :) which 
as  far  as  i can  see  from  the  book,  was  in  force  till:  1771  : the  Trial  by 
Jury  is  expressly  established  iu  all  such  cases.  Such  franchises  of  fer- 
ries as  subsisted  as  private  property  does  not  prove  it:  for  the  right  was 
the  publick’s  already  when  they  were  granted  : the  right  of  landings  to 
the  ferry  would  be  more  to  the  purpose  : but  this  is  mere  hair-splitting : 
and  no  record  of  any  dispute  subsists.  Grants  of  such  unrestrained 
franchises  as  these,  of  bridges  and  roads,  if  there  were  such,  which  I do 
not  know  of,  when  the  lands  pretty  much  belonged  to  the  crown  or  the 
colony  or  the  publick  in  some  way,  or  the  Indians  or  the  people  that  ask- 
ed for  the  franchise,  will  hardly  be  a respectable  crowbar  for  our  courts 
to  carry  about  in  their  hand  to  overthrow  the  Trial  by  Jury,  in  our  stage 
of  every  thing,  in  a class  of  cases  increasing  in  number  with  uninter- 
rupted speed,  and  in  which  the  chance  to  get  rid  of  it, is  sure  to  be  made 
careless  use  of  and  ill  use  of,  in  the  end.  The  power  of  the  General 
Court  to  oblige  the  owners,  most  of  them  in  practice,  to  accept  of  a Trial 
by  committees,  in  place  of  the  Trial  by  Jury,  has  not  a shadow  of 
foundation,  and  the  statutes,  so  far  as  they  embarrass  their  getting  it,  are 
contrary  to  law.  I have  looked  through  this  book  : purporting  to  be 
published  : 1771  : one  statute  it  contains  was  made  in  April  of  that  year, 
called  “ acts  and  laws  of  his  majesty’s  province  of  New-Hampshire  :”  by 
order  of  the  general  assembly  ; and  which  also  contains  the  commission 
of  president  Cutts,  which  was  the  charter  of  the  province  and  erection 
of  her  courts  of  record  : uncommonly  well  printed  at  Portsmouth.  It 
must  take  strong  proof  to  satisfy  a historian,  that  so  uncalled-for  and 
unlooked-for  a deviation  from  the  common  law  of  England  as  taking 
away  a man’s  Trial  by  Jury,  during  one  hundred  and  forty  years,  from 
the  time  when  my  ancestors,  Ambrose  Gibbon  and  others  (I  should 
almost  take  it  up  as  a personal  quarrel),  established  the  first  permanent 
settlement  of  the  English  in  New-Hampshire  at  the  mouth  of  our  creek  : 
1631  : could  subsist,  without  being  ever  alluded  to  in  thefi^statutes  or  in 
Cutts’s  letters  patent.  The  highway  act  gave  it,  as  we  see,  when  there 
were  not  fifteen  thousand  people  in  New-Hampshire.  Nolfranchise  ofa 
publick  highway  to  take  toll  appears  to  have  subsisted  but  some  ferries: 
they  of  course  show  nothing.  It  is  plain  that  as  late  as:  1771:  the 
province  nor  its  general  assembly  knew  nothing  of  their  own  power  or 
that  of  the  crown  to  take  one  man’s  estate  and  give  it  to  another  by 
statute,  without  his  getting  a Trial  by  Jury.  No  English  act  of  parlia- 
ment, for  that  purpose,  would  have  changed  the  common  law  here  : it 
would  have  rested  on  the  despotick  power  of  parliament  alone.  Private 
property  was  carefully  looked  to.  The  statute  in  relation  to  white  pine 
trees,  so  essential  to  England’s  interests  then,  excludes  in  direct  words 
such  as  were  private  property : it  extends  to  his  majesty’s  woods  alone. 
Royalist  days  put  out  no  such  doctrines  as  these  we  hear  now.  I can 
find  no  laws  justifying  the  supposition  that  such  doctrine  had  got  in  down 
to  : 1784  : Fish  out  your  custom,  then,  land  it  on  the  bank  and  let  us  see 


15 


what  it  is.  They  will  not  trouble  themselves  about  history  much : 
of  course  this  system  ot  incorporated  wealth  was  not  foreseen  ; or 
it  was  too  momentous  not  to  be  named.  It  has  nothing 
to  do  with  the  classes  of  cases  excepted,  which  were  meant  to 
be  very  different.  If  the  State  do  not  guaranty  herself  the  per- 
formance of  these  contracts,  and  she  do  not  make  them  with  the 
owner  when  she  vests  any  of  his  estates  in  them  : 1 consequently  hold  : 
That  any  of  her  subjects  had  in  him,  when  his  property  was  thus  taken 
from  him  by  an  act  of  the  General  Court  and  given  to  a private  corpo- 
ration, a right  to  get  his  compensation  for  its  loss  finally  determined  by 
a Trial  by  Jury:  1792:  and  consequently  there  is  in  him,  in  the  same 
case  now,  and  nothing  so  long  as  our  present  constitution  subsists,  can 
get  it  out  of  him,  a right  to  a Trial  by  Jury. 

1 shall  be  asked,  1 have  said,  why  1 raise  a ghost  to  attack  it : it  is  not 
disputed  that  he  ought  to  have  his  Jury.  There  is  good  reason  for  my 
dwelling  on  it.  When  I look  into  our  Jaw  and  see  the  consequences  of 
statutes’  being  drafted  by  people  careless  of  the  law  or  to  whom  it  is 
unknown,  and  interpreted  by  not  much  better:  when  I see  the  safety  of 
the  estates  of  thousands,  throughout  these  States,  resting  wholly  on  the 
faith  of  statutes  and  often,  of  statutes,  which  if  I wanted  to  make  them 
stand  good  in  law,  I should  have  great  trouble  in  doing  it:  and  then 
foresee  the  likelihood  that  the  legislative  power  may,  in  the  end,  take 
advantage  of  this  to  disperse  and  destroy  them  ; I shall  continue  to  be- 
lieve it  as  well,  that  the  habit  of  obeying  the  pi  escribed  methods  of  law, 
where  tenures  of  property  are  concerned,  should  be  established.  The 
disregard  of  the  Trial  by  Jury  in  devesting  estates  for  the  good  of  these 
private  corporations,  kicking  it  out  of  the  way  with  contempt  and  put- 
ting the  humblest  peasant  in  danger  of  the  costs  of  a regular  suit  at  law 
to  get  it,  is  an  outrage  upon  justice  and  a disgrace  to  the  General  Court: 
but  suppose,  on  investigation,  that  it  really  is  not  disputed  that  so  far  the 
law  is  plain  : that  the  position  that  the  owner  ought  to  have  a Trial  by 
Jury  and  his  right  to  compensation  are  positions  the  court  does  not  mean 
to  storm:  very  good,  my  learned  friend,  their  artillery  is  turned,  where 
those  who  do  not  know  the  force  of  fictions  of  law,  do  not  expect  to  see 
their  balls  coming : and  it  is  deliberately  upheld  by  our  High  Court  of 
Chancery,  indeed  taken  for  granted:  That  when  the  law  says  the  owner 
has  a right  to  compensation  and  a Trial  by  Jury,  the  law  by  no  means  on 
that  account  necessarily  intends  that  he  shall  ever  get  any  ot  either.  If 
they  be  right,  fictions  of  law  can  boast  of  a career  of  victories  unexam- 
pled in  their  native  land.  Well : let  us  see  what  compensation  is:  our 
Lord  Chancellor  says  : not  very  clearly  what  it  is,  for  he  thinks  it  may 
be  any  thing ; but  whatever  this  “ general  provision  as  in  the  opinion  of 
the  legislature,”  may  be : “ That  it  is  subject  at  the  same  discretion  to 
the  delay  attendant  on  the  action  of  a committee,  and  of  a Trial  by  Jury, 
and  also  to  the  contingency  of  non-payment : but  if  payment  should  not 
be  ultimately  made  the  condition  on  which  the  land  was  entered  upon 
might  be  considered  as  having  failed,  all  concerned  in  the  acts  done  up- 
on the  land  would  in  such  case  become  trespassers  ab  initio.  With  this 


16 


construction  of  the  acts  the  owner  would  either  receive  compensation 
for  the  land,  or  it  would  not  pass  from  him,  and  for  all  intermediate  acts 
he  would  have  the  ordinary  common  law  remedy  against  trespassers.” 
The  Lord  Chancellor  of  England  is  guardian  of  all  infants,  idiots  and 
lunaticks  : as  to  ours,  people  can  judge  lor  themselves,  which  way  the 
guardianship  ought  to  be.  The  notion  that  the  General  Court  has  pow- 
er to  make  the  owner  take  for  the  value  of  his  estate,  ascertained  by  a 
Jury  of  the  country  and  paid  in  the  lawful  coin  of  the  realm,  “such 
g-eneral  provision  as  in  their  opinion  who  have  no  power  to  ascertain 
it  at  all,  shows  folly  enough : but  that  they  can  go  on  and  make  him  take 
this  compensation,  such  as  it  is,  “ subject  to  the  contingency  of  non-pay- 
ment:” and  that  the  people  they  sent  to  kick  the  owner  out  by  law, 
should  be  afterwards  kicked  out  by  him  as  “trespassers  ab  initio:”  by 
law  too:  is  a new  notion  of  the  tenures  of  property.  The  thing  is  too 
laughable:  but  our.  tenures  of  property  are  not  to  be  sported  with  in  this 
way  by  half  a dozen  young  gentlemen  in  a committee-room  of  the  Gen- 
eral Court,  of  a summer’s  afternoon  after  dinner,  with  swindlers  in  the 
lobby  and  managers  on  the  floor  to  egg  them  on,  and  people  on  the 
bench,  that  ought  to  have  a cap  and  bells  or  a straight  jacket,  to  back 
them  both  up.  Let  us  examine  what  compensation  is  ; and  when  the 
estate  is  completely  vested  in  the  railway  on  the  acknowledged  princi- 
ples of  our  common  law.  I am  grieved  to  differ  from  our  learned  court : 
I am  still  more  to  differ  from  what  has  been  the  practice  : but  at  such  a 
defence  of  the  practice  as  this,  it  is  impossible  to  do  any  thing  but  laugh  ; 
though  the  question  involves  the  deepest  foundations  of  the  tenures  oi 
property  of  the  private  corporations  themselves  as  well  as  every  body’s 
else,  against  each  other  and  the  General  Court. 

The  State,  as  far  as  1 can  understand  it,  through  its  General  Court, 
says  it  has  power  whenever  it  will  to  create  instantaneously  two  equally 
indefeisible  estates  : neither  of  which  existed  before  : and  neither  was 
vested  before  in  the  owner  nor  the  corporation.  These  must  be  com- 
pletely equal  to  each  other.  The  one  is  the  corporation’s  right  to  his 
land : the  other  is  his  right  to  their  money  for  it.  This  is  the  only  sense 
I can  make  of  the  American  law  in  relation  to  private  corporations  for 
public  highways.  1 am  not  disposed  to  dispute  the  General  Court’s  right 
to  perform  this  feat ; that  they  can  vest  a complete  right  to  one  without 
vesting  a complete  right  to  the  other:  I utterly  deny:  Mr.  Chief  Justice 
Parker  to  the  contrary  notwithstanding:  who  says:  “That  compensa- 
tion subject  to  the  contingency  of  non-payment  is  compensation.”  The 
State’s  right  to  take  private  property  without  compensation  herself  will 
not  be  pretended : unfortunately,  the  American  doctrine  with  respect  to 
these  damages  has  been  copied  from  the  English:  whose  parliament  is 
beyond  control.  Their  old  law  of  highways,  the  king’s,  of  turnpike- 
roads  and  such,  is  founded  on  wholly  different  principles:  but  that  of 
these  franchises  is  more  like  to  deceive  us:  parliament  can  vest  an 
estate  there  in  them,  at  least  nobody  can  dispute  it,  without  compensa- 
tion. The  State  here  cannot  even  in  herself.  It  is  plain  that  the  first 
step  in  this  shifting  of  estates  is  for  her  to  get  the  estate  out  of  its  owner 


17 


into  herself.  She  must  give  an  equivalent:  as  good  an  estate  as  he  had 
belore  in  every  way.  She  must  absolutely  give  him  its  value  in  money 
when  she  takes  it;  or  she  must  give  him  absolute  assurance  of  it.  No 
law  can  hold  an  estate  with  a possibility  of  his  never  getting  possession 
of  it  equal  to  the  one  he  has  in  possession.  If  she  take  it  for  her  own 
works  he  has  an  estate  in  possession  ; for  then  that  her  honour  is 
pledged  is  not  to  be  disputed  in  a court  of  law  ; at  least  I shall  not  do  it : 
and  her  honour  being  necessarily  incalculable  in  amount  and  inexhaus- 
tible in  nature,  contains  in  itself  the  damages  however  large  they  may 
turn  out,  and  they  are  as  good  as  paid.  But  here  is  the  hinge  of  the 
whole  question.  If  she  assure  them  their  property  in  their  franchise: 
she  must  assure  him  his  property  in  whatever  damages  he  is  to  get  for 
the  injury  their  franchise  does  him.  They  are  not  to  have  an  estate  in 
possession  and  he  a contingent  remainder  subject  to  be  defeated  by  the 
bankruptcy  of  the  corporation  or  divers  acts  of  the  General  Court.  To 
get  over  this  insuperable  difficulty  our  courts  assume,  as  I have  said 
without  knowing  it,  that  the  State  pledges  her  honour  that  he  shall  be 
paid  when  she  attempts  to  vest  his  estate  in  them.  If  she  do  not;  their 
franchise  vests  necessarily  in  them  no  property  of  his  at  all.  The  sim- 
ple question  then  is  whether  she  does : it  is  notorious,  it  is  indisputable 
that  she  does  not : and  the  fiction  of  law  cannot  stand.  The  whole 
estate  is  in  nobody  but  him.  She  obliges  him  to  sell  to  them  for  its 
just  value.  The  English  precedents  have  deceived  us.  The  value  must 
here  be  positively  ascertained  by  a Trial  by  Jury;  and  the  value  must 
be  paid  before  the  estate  is  completely  devested.  The  law  can  contem- 
plate no  contingency  in  this  matter : it  is  an  outrage  to  suppose  it.  If 
his  estate  remain  contingent  on  their  solvency  or  any  thing  else  : theirs 
must  be  contingent  too.  The  State  cannot  force  him  to  take  their 
credit : but  when  she  summons  a Jury  and  pays  him  what  the  Jury  says 
through  them,  or  any  body  else : then  she  devests  him  of  his  estate  and 
vests  it  in  them  She  cannot  make  him  take  in  return  for  his  estate  in 
his  present  possession,  another  which,  it  is  acknowledged,  can  never  be 
in  his  actual  possession  till  the  positive  occurrence  of  a future  event 
which  innumerable  circumstances  may  keep  from  happening  at  all.  If 
the  State  choose  to  do  certain  things  through  other  people,  and  mean  to 
give  them  her  own  full  power ; she  must  be  answerable  for  all  their 
acts  and  contracts  in  her  employ.  Tf  she  will  not  be  so : she  makes 
them  private  persons  without  her  full  power.  She  can  devest  none  of 
her  subjects  of  his  estate  till,  when  she  does  so,  she  vests  another  estate 
completely  equivalent  in  nature  in  him.  Such  is  the  lawful  coin  of  the 
realm  or  the  pledged  honour  of  Newllampshire.  The  one  is  just  as  good 
as  the  other  and  nothing  else  is  as  good  as  either.  She  cannot  make  him 
take  in  return  for  his  estate  an  action  for  damages  against  some  other  sub- 
ject at  common  law:  nothing  but  the  money:  Or  her  assurance,  her 
obligation,  her  debt  and  her  bond  : banging  upou  no  dubious  and  un- 
certain event.  She  is  not  to  get  off  with  assuring  him  that  tlie  sheriff 
will  give  it  to  him,  nobody  knows  when,  if  the  corporation  have  it  to 
give  and  the  courts  and  sheriff  together  can  find  out  where  it  is.  This 

3 


13 


is  no  absolute  assurance  that  he  shall  be  paid.  This  is  not  equal  to  the 
estate  of  which  she  devests  him,  and  they  say  she  vests  in  them.  Then 
if  she  choose  to  make  such  a contingency ; that  is  her  business  : they 
accept  their  franchise  such  as  it  is.  These  private  acts  are  nothing  to 
him  then  ; they  neither  vest  nor  devest:  till  agreement  ; or  the  contro- 
versy between  the  parties  is  determined  by  a Jury  of  the  coiMtry  and 
the  money  paid  : then  the  estate,  such  as  it  may  be,  is  completely  vested. 
English  precedent  as  I have  said  has  no  application  here.  A statute  is 
their  supreme  law  of  the  land:  and  similar  corporations  there  are  creat- 
ed by  a sort  of  publick  act:  but  1 will  venture  to  say  none  such  are  made 
without  all  people,  to  be  affected  by  them,  being  fully  warned,  heard  if 
they  want  to  be,  and  the  government  fully  satisfied  that  the  corporation 
will  pay.  Parliament  would  about  as  soon  think  of  devesting  estates  in 
this  careless  way  as  of  dethroning  the  queen.  The  power  of  the  State 
to  take  away  estates  and  vest  them  in  other  people,  1 am  not  disposed  to 
argue  about ; her  power  to  do  it  without  giving  her  own  credit  or  the 
money;  I utterly  deny : but  when  the  value  is  determined  by  a Jury 
{summoned  by  statute,  I will  agree  to  no  tampering  with  tenures  of 
property);  and  the  value  is  paid:  then  the  estate  is  completely  vested  and 
he  resists  at  his  peril. 

The  State,  as  I have  said,  wilfully  leaves  things  in  this  way,  and  with 
her  reasons  in  a court  of  law  we  have  nothing  to  do.  The  damages  are 
a controversy  concerning  property  between  two  private  persons  and  the 
suit  can  be  determined  by  a Jury  alone.  The  courts  cannot  make  him 
take  “ security  to  their  satisfaction”  in  their  private  capacity,  for  it  is 
nothing  more:  the  Jury  alone  can  tell,  by  the  supreme  law  of  the  land, 
what  is  to  be  paid.  No  matter  whether  it  be  right  or  wrong  that  It 
should  be  so  : it  is  enough  that  is  so : no  other  evidence  in  the  world 
but  their  judgment  can  be  taken  by  a court  of  common  law,  nor  a court 
of  equity  either,  as  to  what  his  estate  is  worth  now.  The  courts  cannot 
make  him  take  the  other  party’s  bonds  for  what  the  Jury  will  “prob- 
ably” give ; how  are  they  to  know  what  they  will  give  ? The 
Jury  is  as  indispensably  required  to  find  out  what  the  bonds  should 
be  as  what  the  money  should  be  : and  has  the  State  given  the  court  right 
to  judge  of  the  goodness  of  the  bonds  and  to  assess  the  damages  ? Are 
they  going  to  take  this  under  their  equity  statute  ? We  should  soon 
enthrone  our  High  Court  of  Chancery  into  our  lord  paramount  to  hold 
our  estates  of : if  they  be  to  devest  estates  at  pleasure.  They  have  no 
power  to  guess  what  the  compensation  is  to  be.  No  testimony  they  can 
get  at  is  worth  one  farthing  in  law  till  the  Jury  tell.  Therefore  then  : 
If  the  State,  through  her  General  Court,  give  him  in  return  for  his  estate, 
neither  its  value  nor  her  pledged  honour  for  it : she  gives  them  no 
estate  in  it;  till  she  summon  a Jury  by  statute  : till  the  damages  have 
been  assessed  according  to  law  : and  they  are  paid  : then  their  estate, 
in  expectancy  before,  is  completely  vested.  The  other  doctrine  has 
arisen  insensibly  from  jumbling  these  private  corporations  with  English 
turnpike-roads  and  their  corporations  for  publick  highways  ; where  the 
law  is  essentially  unlike  in  theory  and  in  practice  still  more : from 


19 


jumbling  them  with  the  State’s  own  works,  when  she  does  pledge  her 
honour:  from  knowing  that  incorporated  property  is  always  in  danger, 
though  they  are  taking  just  the  right  way  to  crack  the  string  by  pulling 
it  too  hard : and,  when  such  things  were  popular,  from  dread  of  the 
legislative  power : the  risk  of  nonpayment  may  be  generally  of  no 
account : but  unsettling  the  tenures  of  property  in  this  careless  and 
contemptuous  fashion  is  a serious  matter.  What  these  vast  interests  are 
to  be  the  better  in  the  end,  in  these  United  States,  for  arraying  the  ten- 
ures of  their  franchises,  and  the  tenures  of  their  property  against  other 
franchises,  in  such  a cloud  of  intricacy  and  suspense,  I do  not  profess 
to  comprehend.  Well  : the  owner’s  right  to  compensation  and  the  cor- 
poration’s right  to  his  land  I defy  all  the  lawyers  in  the  world  to  make 
tor  an  instant  separable  from  each  other.  His  right  and  theirs  must  keep 
along  side  of  one  another : the  door  must  not  open  outwards  only ; it 
must  open  both  ways : if  his  estate  be  in  expectancy ; theirs  must  be 
so  too  : if  his  getting  into  their  money  be  doubtful ; doubtful  too  must 
be  their  getting  into  his  land.  But  when  the  damages,  assessed  accord- 
ing to  law, have  been  paid:  then  they  go  in.  The  law  does  not  mean 
to  treat  them  harder  than  him  ; nor  him  than  them:  it  must  mean  to 
treat  them  both  the  same  : if  they  must  wait  too  long  for  a Jury  ; let 
them  look  out  for  a better  act:  a court  of  equity  cannot  relieve  here : if 
the  General  Court  do  not  tell  them  how  they  are  to  get  a Trial  by  Jury  ; 
let  them  get  a better  act : a court  of  equity  cannot  summon  it  for  them  : 
“ The  State,”  they  say,  “ wants  us  to  go  in  now  fof  the  public  good  ; 
forthwith  !”  No  such  thing  : she  knows  the  public  good  ; and  if  she  did 
not  tell  them  how  to  get  in  according  to  law,  she  meant  them  to  wait  till 
she  did.  How  can  she  tell  us  any  thing  but  through  the  statutes?  We 
can,  in  these  things,  get  no  kind  of  a sound  out  of  her  any  other  way. 
Their  right  in  other  people’s  land  must  rest  on  the  statute,  here  and  in 
England  both  ; interpreted  by  the  common  law : not  on  the  will  of  a 
court  of  equity.  Here  these  statutes  must  also  consist  with  the  supreme 
law  of  the  land. 

After  this  hear  our  Lord  Chancellor’s  nonsense  : “ The  corporation 
has  filed  at  once  without  waiting  for  the  report  of  the  committee,  a bond 
conceded  to  be  amply  sufficient  (conceded  by  whom?  it  was  not  by 
the  petitioner,  I am  told)  to  indemnify  the  petitioner  against  any  claim 
of  damage  he  may  recover  and  have  professed  a readiness  to  place  with 
the  clerk  of  the  court  a sum  in  specie  sufficient  for  this  purpose  in  lieu 
of  said  bond,  if  this  would  obviate  his  objections  to  the  acts  of  the  corpo- 
ration.” What  in  the  name  of  folly  had  he  ever  to  do  with  filing  this 
bond  ? Are  he  and  the  clerk  of  his  court  going  to  take  the  place  of  the 
Jury?  Show  me  the  statute ! Though  the  State’s  statute  to  that  effect 
would  have  been  good  for  nothing  if  she  had  made  it:  but  she  never 
did.  Does  he  absolutely  think  that  he  himself  has  power  to  devest  one 
of  his  estate  and  give  it  to  another,  when  any  body  files  a bond  in  his 
court  of  equity  (what  business  the  bond  had  to  be  filed  there  I do  not 
know)  or  shells  out  money  to  the  satisfaction  of  him  and  his  clerk  ? Jf 
he  had  done  such  a ridiculous  thing  as  to  file  this  bond,  he  need  not 


have  gone  on  ami  told  every  body  of  it.  1 will  say  more  of  what  our 
courts  of  equity  ought  to  see  to,  at  this  time,  before  I get  through. 

One  of  Mr.  Chief  Justice  Parker’s  most  celebrated  judgments  so  well 
expresses  my  views  on  some  of  these  points  that  I will  transfer  some  of 
it.  This  franchise  is  property.  No  part  of  a man’s  property  shall  be 
taken  from  him  or  applied  to  publick  uses,  without  his  own  consent  or 
that  of  the  representative  bod}'  of  the  people  : bill  of  rights  : this  has 
always  been  understood  necessarily  to  include,  as  a matter  of  right  and 
as  one  of  the  first,  principles  of  justice,  the  further  limitation,  that  in  case 
his  property  is  taken  without  his  consent,  due  compensation  must  be 
provided.  It  is  not  supposed  here,  that  even  the  consent  of  the  repre- 
sentative body  of  the  people  could  give  authority  to  take  the  property  of 
individual  citizens  for  highways,  bridges,  ferries,  and  other  works  of  in- 
ternal improvement,  without  the  assent  of  the  owner  and  without  an  in- 
demnity provided  by  law.  No  distinction  is  made  in  the  constitution 
between  property  of  one  description  and  that  of  another  : and  if  a fran- 
chise is  property,  we  do  not  discover  upon  what  ground  it  claims  an  ex- 
emption from  the  same  liabilities  to  which  other  property  is  subjected.” 
There  spoke  the  spirit  of  the  common  law  : then  spoke  the  shade  of 
Sir  John  Holt.  “The  position  that  the  defendants  may  take  their  pro- 
perty because  the  plaintiffs  will  have  a right  of  action,  cannot  be  sup- 
ported. Had  the  plaintiffs  seen  fit  to  suffer  their  property  to  be  taken 
and  sought  redress  for  the  injury  by  action,  it  might  have  been  support- 
ed: but  this  is  not  the  compensation  intended  by  law  where  property  is 
taken  for  publick  use.”  “ It  is  not  by  way  of  damages  to  be  obtained  in 
an  action  for  injury  done,  that  the  party  is  entitled  to  be  indemnified  for 
property  thus  lawfully  taken.”  “ So  far  as  the  defendants  may  act  law- 
fully pnder  their  charter  they  will  not  subject  themselves  to  an  action 
for  an  injury.  So  far  as  they  cannot  lawfully  act,  they  ought  to  refrain 
from  acting.”  (So  said  Lord  Chancellor  Parker:  Lord  Chancellor  Par- 
ker says : “ This  compensation  is  subject  to  the  contingency  of  non- 
payment: but  if  payment  should  not  be  ultimately  made  the  people 
concerned  would  in  such  case  become  trespassers  ab  initio,  and  the 
owner  would  have  the  ordinary  common  law  remedy  against  trespass- 
ers.” And  this  he  said  was  compensation  : “ Zeu,  alloi  te  theoi,”  where 

is  he  going  next  ?).”  His  honour  then  denies  justly:  “ That  equity  will 
not  relieve  against  a statute : That  the  plaintiff’s  property  may  be  taken 
for  publick  use,  although  no  compensation  is  provided  in  the  charter 
because  the  plaintiffs  might  have  an  action.”  This  is  the  law  and  why  ? 
Because  the  law  would  not  let  an  estate  vest  through  a wrong  ; not  only 
that : Because  a right  of  action  is  an  estate  not  so  good  as  the  one  the 
owner  has  in  possession.  It  is  no  equivalent.  “If,”  says  he  farther: 
“the  defendants  have  no  right  and  proceed,  the  plaintiffs  might  be  with- 
out any  adequate  remedy:  for  upon  a judgment  at  common  law  for 
damages  against  the  corporation,  all  the  corporate  property  might  be 
wholly  insufficient  to  indemnify  the  plaintiffs  for  the  invasion  of  their 
right.  The  individuals  concerned  might  be  able  to  respond  and  still  the 
remedy  inadequate.”  To  be  sure  : his  honour  sets  the  matter  at  rest. 


21 


All  i lie  State  ran  make  me  take  in  return  for  my  property  is  its  value  or 
absolute  certainty  of  getting  it.  The  two  rights  are  the  same  ; one  can- 
not exiffbefore  the  other  and  she  can  give  no  more  than  she  has.  If  she 
give  me  neither  the  money  nor  her  absolute  assurance  of  it  she  has 
vested  no  property  of  mine  in  herself  and  can  vest  none  in  any  body 
else.  His  honour’s  position  1 thought  impregnable  till  he  stormed  it 
himself  The  same  chancellor,  bequeathing  laws  to  his  court,  estab- 
lishes that  the  common  law  remedy  against  trespassers,  at  some  future 
day,  is  compensation  at  common  law! 

Let  us  look  and  see  if  the  General  Court  have  been  intentionally  care- 
less of  this  man’s  rights : for  it  looks  to  me  as  if  they  were  better  lawyers 
than  the  courts:  who  go  so  far  to  please  them  as  not  only  to  establish 
the  lawfulness  of  the  unlawful  powers  they  assume  ; but  of  those  they 
never  did.  I wish  the  General  Court  would  turn  round  and  thank  them 
in  registered  statutes  like  the  statute  of  Edward : put  the  bill  of  rights 
and  the  amendment  to  the  constitution  of  the  United  States  into  a 
statute  and  declare  them  to  be  law  : it  would  be  advantageous  to  our 
courts.  The  railway  is  the  party  interested  now  to  interpret  them  to 
show  that  the  owner’s  compensation  and  Jury  are  found  in  their  statutes: 
not  he.  He  does  not  hold  his  estate  of  a statute.  It  is  their  look  out  to 
twist  them  to  a shape  that  will  justify  a court  in  determining  that  they 
do  assure  him  of  the  certainty  of  both:  for  that  is  what  is  to  vest  the  pro- 
perty in  them.  Not  a spark  of  it  can  they  draw  out  of  him  if  they  cannot. 
The  New-Hampshire  General  Court,  after  repealing  an  act  which  au- 
thorized them  to  take  and  hold  land  for  embankments,  et  cetera : just  as 
much  and  wherever  they  pleased  in  New-Hampshire  ; in  express  words 
(a  pretty  franchise  to  be  huckstered  through  a country  by  jobbers : who 
is  to  stop  them  P What  is  to  keep  them  from  extorting  money  from  any 
body  they  choose  by  threats  of  destroying  his  property?  No  Trial  by 
Jury  or  pay  till  they  be  done:  the  General  Court  they  say  could  not 
without  the  right  to  repeal,  it  would  be  to  revoke  their  grant ; and  the 
whole  year  must  go  by  first : few  people  would  risk  a suit  with  them: 
and  the  Courts  would  not  stop  them  by  injunction  if  they  took  half  a 
dozen  villages  fifty  miles  off:  as  we  shall  see) : after  repealing  such  a 
statute  as  this, worthy  of  Mourad  the  second  and  Selim  the  first;  Enacted 
by  a publick  act : That  the  corporation  or  the  owner  (what  has  he  got  to 
do  with  it  ?)  might  apply  by  petition  to  the  court  of  common  pleas  for 
the  county,  for  a committee  to  assess  the  damages  and  report  to  the 
next  succeeding  court,  in  the  same  county,  of  common  pleas  : the  com- 
mittee was  to  give  fourteen  days  notice : and  then  either  party  was  to 
have  a Jury  on  application  therefor  in  writing.  The  report  of  the  com- 
mittee was  legal  testimony,  with  other  for  the  Jury : and  was  evidently 
meant  to  be  for  the  court  of  common  pleas,  for  a purpose  we  shall  see. 
So  far  ; so  good.  The  General  Court  knew  he  had  a right  to  a Jury  ; 
and  meant  to  assure  him  he  should  get  that:  but  it  vests  no  estate  in 
his  land  in  the  railway  yet ; for  it  does  not  assure  him  that  it  will  ever 
do  him  any  good.  The  State  has  not  assured  him  yet  that  he  is  ever 
going  to  get  the  damages  the  Jury  is  going  to  assess : and  it  is  none  of 


22 


his  business  to  petition  in  writing  for  the  Jury  : it  is  the  railway  that 
wants  to  shift  the  estate.  The  seventh  section  of  the  same  act  does  have 
in  it  some  faint  inkling  of  what  ought  to  be  clearly  set  forth  : if»  rightly 
interpreted  : as  our  courts  interpreted  it,  he  may  be  kicked  out  of  doors 
two  or  three  years  before  it  come  into  action,  and  then  do  no  good  : it  is 
enough  to  carry  them  in,  after  the  damages  have  been  assessed  accord- 
ing to  law  and  paid : but  no  more.  If  this  section  were  not  in  the  act, 
the  whole  is  good  for  nothing  ; not  worth  one  single  farthing  ; and  vests 
no  sort  of  estate  in  them,  in  expectancy  or  possession  : if  he  say  no.  It 
says:  “That  when  application  for  a Jury  shall  be  made  to  the  court 
(that  nor  no  other  court  can  get  in  a Jury  before  the  report  of  the  com- 
mittee, for  the  statute  itself  tells  when)  to  estimate  the  damages  for  lands 
taken  as  aforesaid,  the  court  shall,  if  requested  by  the  owners  thereof’ 
require  the  said  railroad  company  to  give  security  to  the  satisfaction  of 
said  court,  for  the  payment  of  such  damages,  as  shall  have  been  assessed 
by  said  road  committee,  or  as  probably  may  be  assessed  by  the  Jury,  for 
the  land  as  aforesaid,  and  all  the  right  or  authority  of  said  corporation 
to  enter  upon  or  use  said  lands  except  for  making  surveys,  shall  be 
suspended  until  they  shall  give  such  security.”  Well : is  there  any  man 
in  New-Hampshire  such  a fool  as  not  to  see  that  this  statute,  however 
all  the  courts  about  interpret  it,  ought  to  be  interpreted  to  vest  no  estate 
in  the  corporation  against  the  owner  till  all  these  requisitions  have  been 
fulfilled : for  then  it  is  a lawful  statute  ! It  has  told  the  corporation  how 
to  get  the  owner’s  Jury  and  when;  but  as  the  courts  interpret  it,  it  is 
good  for  nothing  again  : they  say  it  means  to  force  the  corporation  to 
pay  him  by  keeping  them  from  using  their  railway  two  or  three  years 
after : for  the  credit  of  the  State  I shall  believe  no  such  thing.  1 will 
make  their  statutes  lawful  if  I can.  That  with  such  law  as  is  promul- 
gated by  our  courts  ringing  in  their  ears,  the  General  Court  should  think 
it  could  make  any  body  take  security  to  the  satisfaction  of  the  court  of 
common  pleas  (!)  for  such  damages  as  may  probably  (!)  be  assessed  by  a 
Jury  for  his  freehold,  is  not  remarkable  ; when  our  High  Court  of  Chan- 
cery thinks  it  can  make  him  take  “ security  to  their  satisfaction”  for  it, 
or  theirs  and  their  clerk’s,  without  the  Jury  or  the  General  Court’s 
troubling  themselves  about  it.  But  even  the  statute,  interpreted  accord- 
ing to  law,  does  not  force  him  to  take  this  till  the  court  of  common  pleas 
get  the  report  of  the  committee.  It  did  not  mean  to  give  the  court  of 
common  pleas  authority  to  devest  him  by  witnesses  sent  out  for  of  its 
own  power,  and  roped  into  court  by  a catchpoll.  This  statute  can  be 
interpreted  in  accordance  with  the  law  of  the  land.  It  names  the  time 
when  the  Jury  shall  act;  and  can  be  interpreted  to  say  clearly  that  the 
vesting  the  estate  in  the  railway  shall  depend  on  the  assurance  of  the 
damages’  being  assessed  according  to  l&w  and  paid  : or  it  so  nearly 
does  so  as  to  be  more  than  is  common  creditable  to  the  General  Court. 
If  I know  any  thing  of  the  New-Hampshire  statute-book,  they  hit  ten 
times  nearer  the  mark  this  time,  than  they  do  in  more  than  one  shot  out 
of  a hundred.  I consequently  hold : That  even  by  the  statutes  that 
incorporated  them:  Till  lawful  notice  was  given  by  the  committee 


23 


appointed  by  the  first  court  of  common  pleas  and  they  had  reported  to 
the  next ; Till  security  was  given  to  the  satisfaction  of  this  court  with 
the  report  of  the  committee  before  it ; and  beyond  all  this,  after  com- 
plying with  their  acts  ot  incorporation,  on  which  rests  their  franchise  ; 
Till  the  damages  were  assessed  by  a Jury  and  paid  : This  corporation’s 
franchise  (and  none  of  it  had  been  done  when  the  injunction  was  asked 
for)  gave  it  no  right  to  build  a railway  in  any  body’s  land  that  chose  to 
object  to  their  doing  it.  Their  loss  of  time  or  the  publick’s,is  no  concern 
of  the  owner’s  in  a court  of  law  or  equity.  If  the  State  choose  to  exe- 
cute projects,  to  a certain  degree  of  a pub! ick  nature,  through  other  ways 
than  the  straight  one,  to  get  rid  of  trouble  and  responsibility  herself; 
through  indirect  agents  and  not  direct  ones  : so  far  as  her  responsibility 
is  taken  away  ; so  far  is  the  power  she  can  give  to  them.  So  far  as  the 
delay,  inconvenience  and  costare  increased,  she  is  assumed  in  a court 
of  law  or  equity  to  know  the  public  good,  to  grant  these  charters  for  it ; 
and  to  foresee  the  whole  : the  railway,  the  court  of  common  pleas,  have 
no  right  to  put  in  their  oar  to  do  more  than  is  in  her  statutes  : and  a 
court  of  equity’s  undertaking  to  interfere  and  sell  the  land  of  one  of  her 
subjects  to  another  against  his  will,  at.  a price  fixed  by  them,  filing  bonds 
and  counting  money  for  it,  discovers  either  an  ignorance  or  fatuity  on 
their  own  part,  when  no  statute  tells  them  to,  or  a hope  of  the  same  on 
the  part  ot  the  publick,  absolutely  unexampled. 

Hear  the  decision  of  the  Lord  Chancellor:  “If  there  be  important 
conflicting  rights,  betwixt  these  parties,  involving  questions  of  doubt 
and  difficulty  there  is  not  sufficient  ground  for  an  injunction  until  such 
rights  can  be  settled  on  full  hearing  and  investigation,  the  party  apply- 
ing for  such  process,  must  either  show  very  clear  right  on  his  side,  or 
with  a probability  of  right  he  must  show  that  if  his  adversary  be  in  the 
wrong  and  be  not  restrained, very  great,  and  perhaps  irremediable  injury 
may  ensue.”  There  are  no  less  than  four  astounding  doctrines  here  pro- 
mulgated by  a Lord  Chancellor,  now  engaged  in  marking  the  bounds  of 
the  most  important  power  known  almost  to  the  law,  in  direct  contradic- 
tion to  the  fundamental  principles  of  a court  of  chancery:  the  previously 
undisputed  right  of  the  owner  no  court  of  equity  can  consider  doubtful 
till  the  new  one  be  established  to  be  lawful : and  an  injunction  must  be 
granted  till  full  hearing  and  investigation,  if  the  injury  be  of  sufficient 
consequence,  or  till  the  right  of  the  new  aggressor  be  determined  by  a 
court  of  common  law  : neither  has  a court  of  equity  power  to  interpret 
statutes  but  by  the  strictest  precedents  and  principles  of  the  common 
law:  neither  has  it  a right  to  take  into  consideration  the  doubtfulness 
of  the  right  and  the  doubtfulness  of  the  injury  associated  together  to 
strengthen  each  other  : if  the  railway’s  right  were  only  probable,  and 
the  improbability  of  the  other  fested  on  nothing  but  the  probability  of 
that,  the  injunction  must  issue  till  theirs  be  established : if  sufficient  in- 
jury be  proved  to  be  taking  place.  The  last  is  a question  wholly  separ- 
ate from  the  first.  No  court  of  equity  is  at  liberty  to  jumble  them  to- 
gether : on  the  first  it  must  tell  the  owner  it  will  resist  the  aggression 
and  do  it  by  the  whole  power  of  their  court,  or  it  must  fairly  tell  him 


24 


that  it  will  not,  because  the  aggressors  have  no  right;  and  lie  must  drive 
them  off  himself,  or  demand  the  assistance  of  the  common  law  to  do  it. 
The  other  reason  should  be  stated  singly : and  was  the  sole  excuse  for 
their  not  instantly  issuing  the  injunction  upon  the  very  statement  they 
make  of  what  the  question  was  themselves.  An  injunction  is  however, 
issued  now,  very  liberally  in  this  respect,  and  is  getting  to  be,  what  it 
really  is,  we  shall  see  by  and  by,  a sort  of  common  law  remedy,  to  deny 
which  a Lord  Chancellor  is  meant  to  have  very  little  discretion.  The 
precedent  was  of  vital  importance  : it  was  the  first  under  these  statutes, 
which  will  be  so  common,  it  was  the  commencement  of  the  jurisdiction 
our  High  Court  of  Chancery  is  establishing  : fifty  people  either  petition- 
ed on  the  same  grounds,  or  were  going  to  if  this  were  obtained  : and  it 
will  be  seen  that  the  court  must  have  known, that  every  body  else  would 
know  what  this  long  story  meant  about  filing  bonds,  and  silver  and  gold 
in  their  clerk’s  hand  : That  the  railway  meant  to  get  their  sanction  to  an 
irregular  proceeding  of  the  gravest  nature,  of  a very  different  description 
from  what  I have  hitherto  examined  ; and  were  in  fact  making  use  of 
the  State’s  high  prerogative  to  devest  her  subjects  without  any  charter 
at  all. 

If  any  thing  could  show  clearer  than  another  the  carelessness  and 
disregard  of  the  law  which  has  so  long  reigned  in  the  interpretation  of 
her  statutes,  and  in  New-Hampshire’s  courts  has  so  long  triumphed 
without  resistance,  and  the  hopelessness  of  setting  it  right : it  is  that  the 
petitioner’s  counsel,  fori  judge  from  the  opinion  of  the  court  that  it 
was  not  in  it,  should  not  have  laid  this  before  the  court.  I suppose  he 
thought  it  would  have  been  of  no  use  if  he  had.  But,  as  far  as  I can 
learn,  it  was  not  necessary  for  him,  on  English  precedents,  to  do  it. 
Though  the  act  of  their  incorporation  be  a private  act,  the  nature  of  it 
is  still  so  publick  that,  when  it  is  once  before  him,  a chancellor  is  assum- 
ed to  know  it  thoroughly  and  to  make  himself  certain  that  the  rights, 
which  rest  on  nothing  else,  do  subsist.  If  he  had  stooped  to  do  this,  he 
must  have  found  all  doubts  as  to  his  course  removed  and  either  issued 
his  iryunction  or  told  the  petitioner  that  he  had  another  remedy  without 
coming  fo  him  : for  the  railway  had  no  shadow  of  right  then,  nor  till  the 
next  year,  did  they  or  could  they  get  one,  in  his  land  ; for  they  deliber- 
ately acknowledged,  and  he  had  nothing  to  do  but  put  the  engineer  on 
his  oath  to  prove  he  was  ordered  to  do  it,  a Chancellor  has  power  to  do 
it  instantly  in  court  to  satisfy  himself,  that  they  meant  to  break  the  statute 
which  incorporated  them.  Let  me  examine  this  strange  proceeding. 

Before  I forget  it  however  I will  say  that  there  was  one  redeeming 
circumstance  about  this  opinion  : and  that  is  that  the  court  had  sense 
enough  not  to  tell  the  world  one  thing  they  went  on : and  that  was 
originally  express  or  constructive  assent  of  the  owner.  No  court  of 
equity  could  be  suffered  to  remain  among  us  that  took  up  such  a creed : 
so  dangerous  in  nature  and  so  bad  in  law : under  these  circumstances 
from  various  reasons.  There  were  no  contracts  made  in  consequence 
of  his  assent : for  every  body  else  was  waiting  to  petition  too.  How 
could  his  assent  bind  him  and  how'  was  it  proved  ? It  could  not  bind 


25 


him  if  they  had  no  act  at  common  law  : it  could  not  bind  him  in  a court 
of  equity,  if  they  had,  if  he  acted  from  such  threats  as  these  people  are 
known  to  have  made:  not  if  he  made  a deliberate  conveyance  Was 
it  proved  by  the  corporation’s  agents  or  his  not  resisting  a hundred  la- 
bourers ? Was  an  estate  devested  by  affidavit  of  the  opposite  party  as 
to  a disputed  fact?  It  was  devested  by  the  single  affidavit  of  the  land- 
agent  of  the  corporation.  The  refusing  this  injunction,  here,  with  this 
opinion  tagged  to  it,  as  completely  devested  him, for  all  practical  purpo- 
ses for  such  people  as  him,  as  the  same  Chancellor’s  court  of  common 
law  could  have  done  it.  Such  a doctrine  does  not  even  accord  with 
what  fell  from  a New-York  chancellor  on  it:  and  the  best  of  it  is  that  he 
says  the  estate  vests  when  the  money  is  paid  according  to  the  statute. 
Such  a doctrine  would  indeed  open  the  door  to  oppression,  circumven- 
tion and  swindling  wider  than  ever:  determining  that  the  nonresis- 
tance of  an  ignorant,  humble  farmer,  was  irrevocable  assent  to  devest 
him  of  his  estate,  exposed  to  the  threats  and  arts  of  their  agents,  and 
overwhelmed  by  the  reputation  of  the  counsel  of  one  of  these  gigantick 
corporations.  Whether  the  court  had  power  to  determine  any  thing 
about  it,  on  a simple  petition  for  an  injunction,  I should  very  much  doubt. 
There  is  a court  of  common  law  and  a Jury  to  determine  whether  the 
right  of  these  corporations  is  established : and  a court  of  equity  is  to  see 
that  the  owner  is  protected  it  till  it  be : or  tell  him  how  he  can  be.  Tell 
their  whole  doctrine  to  the  shade  of  old  club-foot  Bell;  publish  it  in 
Westminster  Hall ; I should  wink  as  I looked  to  see  shaking  the  mane 
and  tail  of  the  graved  lion  on  the  Great  Seals, and  tremble  for  his  roar  as 
he  sprang  on  the  jackass.  These  chancellors  are  now  establishing,  by 
precedent,  what  their  power  is.  They  are  fond  of  dealing  in  bonds 
without  being  told  to : is  there  any  bond  filed  to  secure  the  different 
subjects  of  the  State,  for  they  are  the  publick,  that  the  General  Court 
will  not  be  swindled  out  of  still  more  unlawful  acts;  and  a High  Court 
of  Chancery  stand  ready  to  interpret  them  and  uphold  these  corpora- 
tions in  a still  more  unlawful  way  ? 

Now  as  to  this  charter:  it  is  not  necessary  to  bring  forward  Mr.  Chief 
Justice  Marshall  or  all  other  great  lawyers  to  establish  that  this  corpora- 
tion must  find  all  its  powers  in  its  acts  of  incorporation;  for  it  is  an 
axiom  of  the  common  law:  and  one  which  a court  of  equity  must  obey. 
He  says  of  such  a corporation  : “ It  may  correctly  be  said  to  be  precisely 
what  the  incorporating  act  makes  it;  to  derive  all  its  powers  from  that 
act;  and  to  be  capable  of  exerting  its  faculties  only  in  the  manner  which 
that  act  authorizes.”  Neither  need  I look  up  authorities  to  show  that 
this  axiom  has  had  paid  to  it  by  the  courts  of  England,  the  very  paradise 
of  statute  property,  the  deepest  submission  : a submission  which  looks 
excessive  to  us,  till  experience  shows  us  the  impossibility,  in  practice,  of 
substituting  another  doctrine  for  it:  and  till  we  remember  that  as,  by  a 
fiction  of  law,  all  corporations  are  established  for  the  publick  good,  the 
law  goes  on  to  assume  that  if  the  same  publick  good  require  a change, 
the  State  will  always  make  it.  The  adjusting  statutes,  of  his  own  author- 
ity, to  meet  the  wishes  of  those  to  whom  the  franchise  is  given,  and 

4 


supplying  their  deficiencies,  is  a power  the  Lord  Chancellor  or  the 
Master  of' the  Rolls  has  not  yet  arrogated  to  himself.  The  notion  that  a 
private  corporation  and  a court,  together  can  make  us  take, “the  common 
law  remedy  against  trespassers”,  or,  a likelihood  of  our  damages’  being 
assessed  and  paid  for  the  damages  themselves  is  going  a good  way  here: 
hut  the  notion  that  they  can  make  us  take  the  likelihood  of  a statute’s 
being  made  at  some  future  day,  for  the  statute  itselfj  has  not  yet  been 
broached  where  her  majesty  keeps  her  Great  Seals:  the  lion’s  mane 
would  rise  once  more.  Can  this  corporation  take  land  against  its  own- 
er’s will,  if  it  comply  with  the  law  in  every  thing  else,  except  where  the 
State  tells  it  to  in  its  charter?  lias  it  a right  to  do  it,  because  it  says  it 
has  reason  to  know  that  another  charter  to  that  effect  will  be  by  and  by 
given  ? Against  rights  secured  by  laws  now  in  force  ? Before  the  act 
is  made  or  considered  of  by  the  people  they  say  are  going  to  make  it  ? 
Has  the  sheriff  a right  to  hang  a man  before  he  is  tried,  because  he  says 
he  knows  he  will  he  and  found  guilty  ? How  is  a court  of  equity  or  the 
corporation  to  know  they  will  make  such  an  act?  Does  the  General 
Court  give  “security  to  their  satisfaction”  that  it  “probably”  will  ? Do 
they  know  it  a year  beforehand  ? Did  any  body  ever  know  what  the 
General  Court  would  do  a day  beforehand  ? Did  they  ever  know  them- 
selves? This  is  carrying  out  the  “ bond”  system  pretty  well:  Tick  for 
the  statute  ; tick  for  the  court  of  common  pleas;  tick  for  the  Jury;  tick 
for  the  verdict;  and  tick  for  his  money:  Every  tiling  else  but  the 
owner  gets  tick ; hut  no  tick  gets  he : his  land  is  taken  ; his  house  pulled 
down  and  a locomotive  run  where  it  stood : This  is  the  first  step  in  the 
process  to  get  the  act  of  incorporation,  and  make  inhuman  its  refusal; 
as  we  shall  see.  The  owner’s  right  till  the  statute  was  produced  was 
indisputable : as  the  railway’s  whole  right  was,  as  far  as  charter  went, 
the  gift  of  this  statute : the  Lord  Chancellor  of  course  read  the  statute 
and  understood  it:  their  adverse  right  was  shown  by  investigation  to  be 
complete  ; or  else  he  told  the  owner  where  to  get  protected : or  else  the 
railway’s  right  to  take  his  land  without  a charter  was  made  clear  to  him. 
I have  ventured  a little  way  into  the  labyrinth  of  the  law  but  not  far 
enough  to  get  hold  of  the  right  thread  of  precedent  for  a Lord  Chancel- 
lor’s going  on  tick  for  a statute. 

One  would  have  supposed, on  superficial  consideration,  that  the  rigour 
of  the  common  law  would  have  relaxed  with  the  enormous  increase  of 
this  sort  of  corporations  and  of  people  interested  in  them  in  England  : 
or  that  the  growth  of  more  liberal  principles,  so  called,  would  have 
given  to  parliament’s  interference  with  private  rights  on  their  account, 
a wider  range.  But  the  decisions  shew  a very  different  public  opinion, 
as  well  as  law,  concerning  them  from  that  of  our  court’s.  We  have  seen 
what  the  Chief  Justice  of  the  Court  of  King’s  Bench  called  them:  and 
he  went  so  far  as  to  determine  that  a canal  could  take  no  toll  from  the 
chief  part  of  the  boats  conveying  merchandise  on  it:  because  the  stat- 
ute gave  them  no  right  to  take  it  but  at  a place  where  they  did  not  want 
to  go.  John  Bull  would  keep  no  such  law  as  to  interpreting  statutes 
a going,  did  he  not  know  its  use  to  protect  the  publick  against  them  and 


27 


them  from  each  other.  The  ablest  chancellor  since  Lord  Hardwicke 
says  that  he  will  use  his  utmost  power  of  his  court  to  protect  private 
property  against  any  acts  of  these  corporations,  beyond  the  strictest 
interpretation  of  their  statutes : that  he  can  listen  to  no  pleas  of  expedi- 
ency nor  compassion  from  them : they  must  wait  for  another  act.  Let 
us  see  what  Lord  Eldon  does  say  about  deviating  from  the  course  set 
forth  in  the  act;  the  interpretation  of  such  statutes;  and  the  obligation 
of  his  court  of  equity  to  protect  private  persons  against  their  wandering 
about  at  their  own  pleasure.  He  confirms  Lord  Tenterden’s  doctrine  ; 
it  was  again  supported  by  Lord  Lyndhust,on  an  appeal  to  the  Lords,  and 
it  was  confirmed  by  them.  Neither  of  the  two  Tory  chancellors  had 
found  out,  what  our  moneyed  interest  upholds,  that  the  property  of  the 
subject  should  be  left  to  the  mercy  of  careless  making,  or  executing  laws, 
and  a free  interpretation  of  statutes.  Well:  hear  Lord  Eldon:  “ I fol- 
low and  adopt  the  expression  of  the  Lord  Chief  Justice  of  the  King’s 
Bench,  and  1 am  glad  to  fasten  myself  in  some  measure  on  his  great 
authority,  and  say  that,  when  1 look  upon  these  acts  of  parliament,  I 
regard  them  all  in  the  light  of  contracts(!)  made  by  the  legislature,  on  be- 
half of  every(!)  person  interested  in  any  thing  to  be  done  under  them; 
and  1 have  no  hesitation  in  asserting  that,  unless  that  principle  is  applied 
in  construing  statutes  of  this  description,  they  become  instruments  of 
greater  oppression  than  any  thing  in  the  whole  system  of  administra- 
tion under  our  constitution.  Such  acts  of  parliament  have  now  become 
extremely  numerous;  and  from  their  number  and  operation  they  so 
much  affect  individuals,  that  1 apprehend  those  who  come  for  them  to 
parliament,  do,  in  effect,  undertake  that  they  shall  do  and  submit  to 
whateverf!)  the  legislature  empowers  and  compels  them  to  do;  and  that 
they  shall  do  nothing  else:(!)  that  they  shall  do  and  forbear  all  that  they 
are  thereby  required  to  do  and  forbear,  as  well  with  reference  to  the 
interest  of  the  publick  as  with  reference  to  those  of  individuals.”(!)  He 
then  denies  the  right  of  one  of  these  corporations  to  go  to(!)  an  owner’s 
land,  though  they  may  have  right  to  take  it  against  his  will, by  any(!)  other 
track  than  the  one  fixed  by  law:  though  it  may  be  a thing  of  complete 
indifference^)  to  his  interest  which  way  they  come.  That  he  says  is  his(!) 
business  to  judge  of  not  the  corporation’s  nor  the  chancellor’s.  They 
can  take  nothing  but  in  the  way,  and  where,  set  forth  by  the  statute. 
He  also  says : without  asking  the  owner  to  make  out,  as  the  Lord  Chan- 
cellor of  New-Hampshire  does,  the  immediate  certainty  of  immense  and 
irreparable  injury : “I  have  therefore  stated,  and  1 have  already  more 
than  once  acted(!)  upon  the  doctrine,  that  if  a deviation  from  the  line 
marked  out  by  parliament  were  attempted,  I would  (unless  the  House 
of  Lords  were  to  correct  me)  stop(!)  the  further  making  of  a canal  now  in 
progress  ; and  for  this  reason,  that  a man  may  have  a great  objection  to 
•a  canal  being  made  in  one  line,  which  he  would  not  have  to  its  being 
made  in  another  ; and  particularly,  he  might  feel  that  objection  in  a case 
where  parties,  after  obtaining  from  the  legislature  leave  to  do  one  thing 
set  about  doing  another.  It  may,  I admit,  be  of  no  greater(!)  mischief  to 
one  owner,  that  the  canal  should  come  through  the  lands  of  this  person 


or  that  person;  but  to  that  my  answer  is,  that  you  have  bargained  (!)  with 
the  legislature,  that  you  shall  do  the  act  they  have  authorised  you  to  do 
and  no(!)  other  act.”  He  then  refuses  to  let  them  spend  more  money  than 
was  at  first  expected,  to  widen  or  deepen  their  canal,  as  it  might  injure 
individuals  more  titan  was  given  them  a right  to  by  their  act,  a quarter 
of  a century  before ; and  says  ; if  they  can  get  out  of  their  straitest 
limits  a'  al! : “ What  is  to  hinder  them  from  carrying  it  from  sea  to  sea? 
Why,  there  would  be  no  end  of  it:  They  are  not  at  liberty  afterwards 
to  injure  the  interests  of  parties  bv  making  what  is  quite  a different 
canal and  again  : “If  consequences  were  to  be  produced  by  an  alter- 
ation and  improvement  in  the  canal : still,  I say,  if  the  alteration  be  not 
sanctioned  by  parliament  (!),  you  are  not  to  bring  about  the  same(!)  con- 
sequences by  means  other  (!)  than  those  which  the  act  of  parliament 
authorises  (1  do  not  hear  yet  about  the  irreparable  injury:  “very  great, 
and  perhaps  irremediable  I believe,  on  my  soul  almost,  that  our  court 
thinks,  that  when  they  are  a court  of  equity,  they  are  no  longer  obliged 
to  find  out  what  privileges  statutes  give,  interpreted  by  the  prece- 
dents and  principles  of  common  law  : and  that  when  “ a bond  is 
filed”  to  the  “ probable”  value  of  a subject’s  house,  no  court  of  equity 
has  right  to  think  another  should  not  pull  it.  down:  not  because  there 
are  other  ways  to  keep  him  from  doing  it ; but  because  as  he  means  to 
pay  for  it,  it  is  no  longer  in  the  eye  of  a court  of  equity  : “ very  great  and 
perhaps  irremediable  injury”).  The  result  amounts  to  no  more  that] 
this,  that  if  you  are  doing  an  act  which  is  conformable  to  the  provisions 
of  the  act  of  parliament,  the  consequences,  bo  they  what  they  may,  are 
produced  by  the  act  of  parliament,  and  not  by  you ; but,  if  lam  right  in 
point  of  law,  you  would  not  be  at  liberty  to  change  these  opeiations,  for 
the  purpose  of  producing  the  same(!)  effect,  without  the  authotity  of  an- 
other (!)  act  of  parliament.  (Can  any  body  read  this  opinion  without 
seeing  that  this  great  Chancellor  considers  himself  oidy  at  liberty  to 
inquire  the  right  of  such  a corporation  in  the  owner’s  land  : and  that  the 
injury’s  being  reparable  by  money  his  court  has  no  concern  with  : that 
the  simple  question  bis  court  of  equity  is  to  look  to,  is  whether  the  cor- 
poration has  any  business  there  at  common  law?  If  they  have  none  he 
must  drive  them  off  and  keep  them  off  by  the  full  power  of  his  court. 
“ The  important  conflicting  rights,  involving  questions  of  doubt  and 
difficulty” : are  to  work  against  the  railway;  not  the  owner.  “Any 
ambiguity  (!)  of  the  terms  of  the  contract  (the  act  of  incorporation)  must 
operate  against  (!)  the  company  of  adventurers  (the  corporation)  and  in 
favour  of  the  publick  (the  owners  of  the  land)  (!):”  says  the  court  of 
King’s  Bench : in  the  case  referred  to  before).”  It  certainly  looks  to 
me,  that  the  sheet-anchor  of  the  party  that  held  up  England  through  her 
long  desperate  struggle  with  revolutionary  doctrines  in  the  bloom  of 
their  youth,  has  not  only  a more  democratick,  hut  a more  far-sighted  and 
safer  notion  of  what  the  law  should  be  as  well  as  is,  with  respect  to 
these  things,  than  our  High  Court  of  Chancery.  He  sees  that  the  lane 
may  have  a turning.  He  seems  to  be  speaking  to  this  very  question  ; 
and  is  an  overwhelming  authority  in  any  court  of  equity  or  of  common 


29 


law;  for  lie  was  master  of  all  : tick  for  a statute  was  not  in  old  Eldon’s 
way.  It  is  not  the  effusion  of  a captious  jacobin  ; but  the  Lord  Chan- 
cellor of  England  for  nearly  thirty  years:  as  good  a lawyer  as  ever 
lived;  master  of  the  principles  of  modern  industry ; skilled  in  the  prop- 
erties of  money  ; and  worth  one  million  of  pounds  sterling  that  he  had 
made  himself:  that  is  speaking  here  about  the  rights  of  these  corpora- 
tions. To  be  sure:  it  lies  not  with  a court  of  equity  to  go  round  meas-> 
uring,  when  it  is  not  clear,  by  their  own  account,  that  the  aggressor  has 
any  right  there  at  all,  what  the  precise  extent  of  the  injury  is  the  owner 
is  going  to  receive : and  file  bonds  and  court  gold  that  the  aggressor 
pledges  to  get  a court  of  equity’s  leave  to  continue  his  aggression.  But 
Eldon  says  still  more  distinctly  in  another  case,  that  the  nature  of  these 
corporations  is  strictly  that  of  private  interests:  this  one’s  act  of  incor- 
poration, by  the  way,  was  a publick  act.  All  their  courts  say,  nearly  in 
plain  words,  that  the  publick  good’s  creating  these  corporations,  parlia- 
ment that  makes  them  and  the  Crown  whose  assent  they  must  receive, 
clearly  hold  the  same  doctrine,  is  a fiction  of  law:  for  equity  has  inter- 
fered to  decree  a specific!?  performance  of  agreements  with  individuals 
or  each  other,  not  to  oppose  their  acts  of  incorporation  is  parliament. 
Agreements  with  a member  of  parliament  are  one  thing:  but  this; 
agreements  not  to  oppose  by  persons  who  are  interested  in  such  acts 
(as  against  their  opposition  parliament  should  not,  in  justice,  make  them, 
usually),  are  equitable  agreements,  and  ought  to  be  enforced:  else  par- 
liament wilfully  destroys  an  estate,  and  then  leaves  its  former  possessor 
to  be  reimbursed  by  an  action  at  law,  like  our  Lord  Chancellor’s  sage 
theory,  when  possibly  the  aggressor  cannot  pay  for  it,  and,  like  enough, 
the  estate  destroyed  afforded  its  owner  the  only  means  he  had  in  the 
world  to  carry  on  the  suit.  It  shows  not  corruption  of  the  legislative 
power ; but  its  own  anxiety  to  do  justice  to  all  the  subjects  of  the  Crown: 
That  England  has  found,  by  boundless  experience,  that  she  must  hold 
them,  even  for  their  own  sake,  to  be  simple  private  interests,  and  all 
their  agreements,  rights  and  suits  to  be  the  same : this ; when  it  is  the 
condition  of  their  bargain  with  the  owners  or  each  other  that  they  shall 
get  through  the  House  of  Commons  and  the  House  of  Lords:  and 
their  acts  of  incorporation,  as  private  interests,  shall  receive  the  assent 
of  the  Crown  : which,  by  their  law,  is  assumed  to  do  no  wrong : That 
they  shall  be  coolly  enacted.  John  Bull  stands  no  such  gammon  aBout 
publicfcgood  : he  knows  them  of  old.  That  a canal,  railway  or  whatever 
else  of  this  sort,  gets  all  its  right  to  go  any  wherefrom  the  strictest  inter- 
pretation of  the  statute  : is  their  common  law.  Our  courts  hold;  from 
the  silver  and  gold  they  put  in  the  clerk’s  hand : and  the  bonds  they  file. 
I do  not  gather  however  that  the  clerk  touched  any  of  the  metal ; or  had 
it  clinked  in  his  ears:  but  the  whole  court  swears  the  railway  was  ready 
to  clink  it : Tick  again.  I go  with  Tenterden  and*Eldon  for  the  act ; 
the  whole  act : and  nothing  but  the  act : comma  for  comma.  But ; be- 
fore ; how  could  1 forget  such  authority  as  theirs?  Did  not  Mr.  Justice 
Marcus  Morton  and  Mr.  Justice  Samuel  Wilde,  those  great  lawyers, 
thinking  as  Ido,  and  thoroughly  penetrated  with  the  spirit  of  the  com- 


3o 


mon  law  of  the  land  of  our  fathers  ; the  very  genius  of  Westminster 
Hall  seemed  to  speak  (I  thought,  as  I read  their  opinious,  a dream  took 
me:  my  head  was  dizzy  with  the  majestick  gloom  of  the  immense  vault 
of  Westminster  Hall  and  filled  with  the  glories  of  the  Conqueror  Wil- 
liam and  his  Norman  line  ; I saw  its  first  walls  rise  in  the  meadow,  the 
monument  of  the  Norman  and  the  work  of  the  Saxon,  with  Emerys  or 
Cumings  making  Kendricks,  Goodwins,  Siwards  or  Elwyns  heap  up 
the  great  stones;  the  fame  of  our  Edwards  and  our  Henrys  rang  in  my 
ears  ; I saw  Bolingbroke  enthrone  himself:  again  ; the  gray  light  of  the 
same  old  Hall  fell  on  the  lofty  foreheads  and  set  lips  of  sixty-six  steady, 
silent  men,  on  scarlet  benches,  with  a Puritan  in  scarlet,  with  a mace 
and  sword,  and  the  Martyr  in  a chair;  again;  a Feudal  vision  passed 
before  my  eyes,  1 saw  before  another  king,  the  gorgeous  phantoms  of 
the  long  rows  of  his  great  vassals,  from  the  forth  of  Scotland  to  the  pale 
of  Ireland,  from  Normandy  and  Aquitaine,  from  Anjou  and  Touraine : 
1 lifted  the  curtain  and  found  myself  in  the  awful  presence  of  the  crown  ; 
supposed  to  be  always  present  in  her  court  of  common  law;  as  Judge 
Parker  says  my  sovereign,  the  people  of  New-Hampshire,  is  in  his  rail- 
way, when  it  pulls  down  my  barn : Morton  and  Wilde  gave  me  the 
whole  dream  : I mistook  Tresilian,  who  hung  nineteen  on  the  same  gal- 
lows for  rebellion,  for  Wilde;  and  Bradshaw,  the  Puritan  in  scarlet  with 
the  mace  and  sword,  who  was  goig  to  cut  off  a king’s  head,  for  Morton  : 
at  first);  did  not  these  learned  men  hold:  “That  the  Charles  River 
Bridge  had  no  right  to  an  inch  nor  a pennyworth  of  land,  water  nor  toll, 
to  the  left  nor  to  the  right  of  just  the  right  length  of  the  best  quality  of 
Bangor  boards : straight  as  an  arrow  from  one  point  to  the  other ; the 
two  termini  clearly  set  forth  in  the  act”  ? Can  any  body  sustain  an 
opinion  in  law  against  the  authority  of  Tenterden  and  Eldon  there  ? 
That  of  Marcus  Morton  and  Samuel  Wilde  here  ? The  thing  is  clear. 

The  most  untoward  event  which  could  have  befallen  the  embryo  sys- 
tem of  equity  jurisprudence,  not  yet  ready  for  the  light,  forming  itself  in 
the  breast  of  the  court  of  chancery, New-Hampshire  had  just  established 
by  statute,  was  to  hurry  it  into  premature  birth  : still  more,  that  the  first 
obligation  of  this  court  to  determine  such  momentous  questions  should 
have  been  in  respect  of  this  railway.  As  a matter  of  course  in  Ports- 
mouth, a quarrel  was  got  up,  with  the  first  project  of  it  some  years  be- 
fore, about  where  it  should  go : such  quarrels  have  usually  a lasting 
vitality.  The  first  projectors  of  it,  did  at  last  fix  it  by  law  to  run  *from  a 
point,  supposed  to  be  known,  on  the  Massachusetts  frontier,  that  is  in 
fact,  from  the  same  bridge  on  which  the  river  Merrimack  is  crossed  now, 
to  the  Universalist  Church  in  the  village  of  Portsmouth.  This  course 
was  uncommonly  direct : unfortunately,  from  that  reason,  it  could  not 
get  out  of  the  way  of  a barren  tract  of  gravel,  sand,  swamp  and  marsh, 
two  or  three  miles  south  of  the  village,  not  worth  five  farthings  the  acre: 
belonging  to  me.  This  interesting  circumstance  to  the  human  race,  of 
course,  has  been  always  brought  forward  to  account  for  my  saying  they 
were  breaking  the  law : what  it  had  to  do  with  the  fact  of  their  breaking 
the  law  is  the  court’s  concern  : not  mine.  As,  when  attacked  for  stand- 


31 


ing  in  people’s  way  who  mean  to  do  wrong,  to  argue  the  question  and 
prove  yourself  in  the  right,  is  to  exaggerate  the  cause  of  the  quarrel:  the 
outcry  may  shift  for  itself.  I advocated  its  going  a mile  or  more  still 
farther  East : however.  The  first  outcry,  every  body  knew  came  from 
chagrin  at  my  interrupting  a certain  leaning  toward  fraudulent  surveys ; 
a constitutional  tendency  to  which  I have  found  astonishingly  rooted  in 
all  these  corporations  for  the  publick  good  : “ veteres  inimicitiee  incita- 
bant  et  dolor  repulsee.”  All  this  is  immaterial:  it  could  not  have  affected 
the  oracles,  delivered  by  the  supernatural  wisdom  of  our  Delphoi.  The 
first  project,  six  years  ago,  was  too  soon  : then  came  the  disastrous  days 
consequent  upon  President  Jackson’s  leaving  his  country  to  her  unassis- 
ted destinies.  Nothing  was  done  after  Diocletian  left  us,  or  while  he 
was  talking  of  going,  but  accept  the  charter : its  whole  course,  fixed, 
inch  for  inch,  by  law  : as  it  always  should  be.  Another  railway  cut  in 
above:  so  things  stood  four  years.  All  at  once,  what  they  had  said  they 
never  would  do,  which  led  to  building  the  poor  other  railway  above  in 
the  interval,  the  railway  of  Massachusetts : finding,  I suppose,  some  stray 
coins  left  in  their  purses,  which  had  escaped  the  mysterious  power  of 
transferring  property,  with  which  not  even  the  wand  of  NewHampshire’s 
GeneralCourt  is  so  highly  gifted  as  that  of  a Philadelphian  publick  bene- 
factor, the  “ odour  of  whose  nationality”  impregnates  the  world  with  its 
sweet  scent,  so  creditable  to  his  nation;  suddenly  made  up  its  mind,  not 
only  to  attempt  the  distant  banks  of  the  Merrimack;  but,  all  at  once,  just 
before  the  General  Court  got  together,  to  roll,  right  off  like  Pindar’s  di- 
thyrambicks,  their  cars  through  the  Boeotian  fields  of  the  Piscataqua : 
and  they  must  make  a burst  instantly  : they  had  waited  two  hundred 
years  and  now  they  could  not  wait  five  minutes.  They  were  fools 
enough  to  suppose  they  were  obliged  to  use  our  charter : whereas,  if 
they  had  only  asked  our  court  of  equity,  it  would  have  told  them  that  any 
other  would  have  answered  just  as  well  : though  chartered  for  another 
track  : they,  of  course,  cared  not  a copper  about  the  Portsmouth  feud  : 
for  there  was  no  reason  why  they  should.  They  got  into  the  hands  of 
the  people  who  had  tried  to  carry  the  railway  out  of  the  way,  four  years 
before,  for  reasons  right  enough  if  the  railway  be  a private  interest : as  I 
say  it  is  in  law  : and  against  whose  interference  it  was  purposely  fixed 
by  the  corporation  where  it  was.  At  the  General  Court  ; rose  from  the 
earth  and  hovered  awhile  over  the  quaking  senate-house,  then  dived  into 
the  lobby,  an  endless  spectre,  commanding  the  General  Court  to  instant- 
ly give  it  a new  charter  for  a railway  wherever  it  pleased  to  go.  It  has 
always  filled  me  with  astonishment  that  every  body  does  not  see  more 
plainly  the  impossibility  of  an  honest  legislature’s  granting  these  high 
powers  without  letting  every  body  know  they  are  going  to,  or  knowing 
themselves  where  they  are  to  be  used.  Such  a caprice  of  despotism  is 
absolutely  unknown  in  the  old  world  : and  every  honest  politician,  dem- 
ocrat or  no,  must  oppose  it.  The  General  Court,  though  disturbed  by 
the  avatara  of  Vishnoo,  and  against  his  numerous  friends,  that  is  the 
whole  whig  part  of  it,  would  not  listen  to  his  behest : the  directors  of 
the  corporation,  I am  told,  had  refused  him  authority  to  make  it:  they 


32 


asked  for  a map  of  his  projected  course  : where  he  wanted  his  charter  ? 
“ The  irresistible  pressure  of  the  publick  good,  in  whose  behalf  I now 
appear,”  returned  the  spectre,  “ has  kept  me  from  getting  surveys  taken 
yet:  I do  not  know  where  I shall  go  with  a railway:  but  -fiie  present 
charter  crosses  a certain  creek,  my  subordinates  report  impracticable,  a 
rod  and  a half  wide,  with  a gulph  of  salt-meadow  to  it,  of  ten  :”  No  sur- 
vey had  been  taken  or  was  produced  : but  they  were  going  to  take  one  : 
tick  as  before.  The  creek,  which  there  was  no  difficulty  of  crossing  of 
course,  the  story  being  merely  got  up  for  the  purpose,  was  picked  out 
because  they  supposed  1 should  be  kept  from  opposing  an  unstinted, 
charter,  by  letters  to  the  General  Court  warning  them,  that  if  they  refused 
such,  every  body  would  suppose  that  it  was  because  they  set  at  naught 
the  publick  good  to  give  me  the  satisfaction  of  having  locomotives  run 
through  my  field : the  creek  being  in  the  extreme  corner  of  the  tract 
above-named.  I never  troubled  myself  about  this:  but  wanted  to  get 
them  off  the  ground,  of  course.  They  had  permission  to  alter  their 
course  in  detail : a change  of  a few  rods,  they  said,  was  indispensable  : 
the  rest  would  do  well  enough  : To  alter  their  course  to  the  ending- 
place  in  gross,  the  General  Court  expressly  refused : for  they  had  seen 
no  survey;  and  let  nobody  know  they  were  going  to  : the  two  termini 
remained  fixed  by  law  as  before.  This  is  not  disputed:  for  the  most 
shocking  anathemas  were  launched  at  the  General  Court  about  it: 
They  must  all  go,  they  said,  and  their  railway  with  them  forever,  to  the 
Universalist  Church  ; the  Author  of  Evil  was  conjured  into  and  safely 
corked  up  by  the  Portsmouth  democrats  in  an  act  of  the  New-Hamp- 
shire  General  Court.  They  were  now  incorporated  to  go  from  the  point 
on  the  frontier  of  the  State,  rather  in  fact  from  the  bridge  in  Newbury, 
to  the  Universalist  church  in  the  village  of  Portsmouth  : not  an  inch  far- 
ther: with  reasonable  directness,  but  still  nowhere  but  to  this  Church 
as  straight  as  else  might  be.  No  matter  why:  I am  not  keeper  of  the 
General  Court’s  conscience;  neither  is  the  Lord  Chancellor:  he  only 
keeps  the  sovereign’s  : and  hers  has  nothing  to  do  with  these  private  acts, 
as  Eldon  says,  who  ought  to  know,  for  he  kept  two  of  them  for  a great 
many  years.  I in  no  way  blame  the  railway  for  wanting  to  go  where 
best  suited  the  private  interests  of  some  people  : for  I hold,  as  he  does, 
the  whole  franchise  to  be  a private  interest : 1 blame  them,  and  he  says 
he  would  stop  them,  for  not  waiting  for  another  charter,  which  nobody 
would  have  opposed,  after  the  survey  of  their  projected  course  was  be- 
fore the  legislative  power.  There  was  no  hurry,  of  course,  for  only  the 
parts  of  the  railway,  that  were  farthest  off  from  the  limits  of  the  charter, 
were  done,  when  the  General  Court  met  the  next  year.  It  is  well 
enough  to  say  that  any  new  act  at  all  was  violently  opposed  in  the  Gen- 
eral Court  by  people  of  their  own  motion,  they  can  tell  whether  they 
did  it  at  mine : and  oidy  carried  with  the  engagement,  of  those  that 
asked  for  it,  that  the  railway  should  not  be  put  just  in  the  place  where 
they  immediately  proceeded  to  put  it.  This  was  the  condition,  or  as 
Eldon  would  say  bargain,  without  which  they  would  never  have  got 
their  franchise : it  was  known  to  every  body  ; the  lobby  was  damp  from 


33 


the  tears  on  its  floor : it  Was  as  well  known  to  the  courts  as  every  body 
else.  This  is  not  material  and  does  not  strengthen  the  obligation  of  the 
Lord  Chancellor  to  read  the  statute  that  was  held  up  to  his  eyes : which 
he  determined  gave  them  right  to  take  land  against  the  owner’s  will, 
without  paying  for  it,  where  their  creator,  the  General  Court,  told  them 
they  should  not  go  at  all,  in  one  part  of  his  book  : and  in  another,  that 
it  was  a question  of  such  “ doubt  and  difficulty,”  that  he  could  not  tell 
whether  it  did  or  no  : and  therefore,  he  says,  it  did.  No  General  Court 
could,  without  disgrace,  have  given  the  charter  they  asked  for : which 
was  to  have  no  stint  whatever.  I gravely  recommend,  however,  our 
High  Court  of  Chancery  to  resume,  to  find  out  what  sort  of  a thing  a 
statute  is,  their  investigation  of  the  great  case  of  Fletcher  versus  Peck : 
as  it  bears  on  such  momentous  and  complicated  questions.  This  corpo- 
ration’s franchise  was  the  State’s  alone  to  give : why  she  gave  it  is  no 
concern  of  our  court  of  equity  : whether  she  gave  it  and  what  she  has 
to  give  and  what  she  gave  : is  what  that  is  to  look  to.  In  a court  of 
equity,  says  Mr.  Ballow  : “ Let  a man  be  wise,  therefore,  or  unwise,  if 
he  be  legally  compos  mentis,  he  is  a disposer  of  his  property,  and  his 
will  stands  instead  of  a reason.”  New-Hampshire  is  not  the  ward  of 
her  own  court  of  chancery:  and  says  our  own  Papin ian  : “It  is  the 
duty  of  every  court  of  equity  to  consult  the  intention  of  the  legislature, 
and  in  the  discharge  of  this  duty,  a court  of  equity  is  not  invested  with 
a larger  or  a more  liberal  direction  than  a court  of  law.”  These  are,  1 
believe,  his  words. 

It  is  not  disputed  that  the  General  Court  refused  them  a charter  to  go 
where  they  went.  No  matter  why  : that  is  the  State’s  business  : she 
knows  the  publi(§£ood.  Under  the  power  given  to  deviate  from  the 
course,  originally  fixed  by  law  from  one  terminus  to  the  other,  intended 
merely  to  enable  them  to  avoid  the  trifling  obstructions  found  to  its  ex- 
act execution,  they  gravely  were  counselled  to  go  where  they  wanted, 
from  the  first,  to  get  a charter  ; but  could  not : told  that  nobody  would 
molest  them  ; knowing  that  they  were  better  able  to  carry  on  a war  of 
law  than  any  that  was  like  to  take  account  of  their  breaking  a law : de- 
liberately building  their  railway  without  any  act  of  incorporation  where, 
they  were  building  it : beginning  at  the  farthest  point  (and  the  most  ex- 
pensive place  of  purpose)  from  the  track  fixed  by  law,  and  hurrying  it 
with, there,  the  utmost  speed  : to  accumulate  the  largest  stores  of  ammu- 
nition, by  getting  the  most  money  expended,  with  which  to  batter  the 
next  year  the  compassion  of  the  General  Court  into  a charter  for  a rail- 
way where  it  stood  built  without  already.  This  explains  the  court’s  long 
story  about  filing  the  bonds  and  the  silver  and  gold.  '!  he  real  owners 
of  the  corporation,  like  enough,  knew  nothing  of  the  risk  they  were  run- 
ning : others  were  told  of  it : for  had  a real  wish  subsisted  to  rob  the  in- 
nocent stockholders  ; their  charter  might  have  been  repealed  : or  rather 
the  subsequent  one  denied.  These  said  they  were  running  no  risk:  the 
General  Court  could  not  have  the  face  to  refuse:  if  they  did;  they  would 
take  to  our  courts  of  law  and  equity.  The  attempting  to  jockey  such  a 
sworn  visitor  and  lynx-eyed  overseer  of  private  corporations  as  our  Gen- 


34 


eral  Court,  was  not  such  a burlesque  as  completely  succeeding.  Well : 

I would  say  nothing  about  this  railway  itself:  but  they  involved  so  many 
questions  of  our  law  and  the  system  of  equity  vve  are  making  by  prece- 
dent : and  our  court  of  it.  in  heir  behalf'  in  rushing  to  their  assistance 
knock  down  so  much  more  law  and  equity  both,  than  there  was  any  call  (ff 
to  help  them  out;  butting  at  law,  that  never  stood  in  their  way:  play- 
ing the  hull  in  the  china-shop,  in  this  sense  to  be  sure ; for  the  true 
excuse  for  refusing  a special  injunction  forthwith,  was  that  the  adjuncts 
of  the  fact  did  not  reach  to  a court  of  chancery’s  instantly  interfering, 
and  that  the  purpose,  in  which  the  publick  took  an  interest, of  getting  the 
law  out  of  them,  could  not  be  gratified  precipitately  in  an  oblique  way ; 
but  had  better  be  done  by  a Trial  at  common  law  : having,  I say,  over- 
looked a rational  defence,  to  go  out  of  their  way,  to  promulgate  what  is 
neither  law,  equity  nor  common  sense  : that  some  of  the  farce  at  the 
end  may  as  well  come  in.  Soon  after  the  General  Court  got  up  and 
went  home,  I was  told  by  a gentleman  living  two  or  three  miles  offj  that 
lie  and  his  people  were  confounded,  when  they  got  up  at  the  first  streak 
of  light  of  a mid-summer  morning,  so  that  they  gathered  and  stood  still 
in  the  doorway,  with  an  inexplicable,  low,  confused  murmur,  but  of  very 
shrill  notes,  never  heard  there  before,  which  seemed  to  come  from  un- 
der the  vapour,  common  here  at  that  season,  resting  on  a meadow  before 
his  door.  After  this  vapour  rose  from  the  earth  an  hour  or  two  after, 
it  left  behind  it,  filling  his  field,  to  the  amazement  of  himself  and  the 
rest,  staggering  at  such  an  unexpected  vision  ; an  unknown  horde,  com- 
posed of  men,  women  and  children,  red,  white  and  gray:  from  whence 
they  came  he  knew  not : how  nor  when : except  that  none  such  was 
there  the  evening  before.  The  horde  seemed  to  be  jjbrpetually  talking 
among  themselves,  but  a language  unknown  to  him  : what  they  wanted, 
of  course,  he  could  not  find  out : but  there  they  were,  encamped  and 
hutted,  in  one  night,  in  great  force  on  his  ground  : and  as  far  as  he 
could  judge  from  their  proceedings,  having  no  means  of  communicat- 
ing by  words,  they  were  going  to  blow  up  a rock,  about  forty  rods  through, 
on  which  stood  his  house  : and  his  house  with  it.  I could  not  tell  him 
what  it  meant.  It  could  not  be  the  railway’s  Irish : that  ran  through  an- 
other part  of  the  country.  1 found  however  it  was  the  Eastern  railway 
corporation  travelling  on  their  way  to  the  Church,  which  is  in  the  South- 
ern part  of  the  village,  by  the  way  of  Portsmouth  bridge  which  is  some 
way  up  the  river,  above  the  extreme  North  of  it:  this  bridge  they  swore 
they  meant  to  seize  as  private  property  (they  being  the  true  agents  or 
assignees  of  the  State’s  power,  not  the  other  highway : our  courts  see 
the  distinction  of  course):  into  the  State  of  Maine.  After  they  had  rid- 
den into  the  State  of  Maine  atop  of  this  bridge  (they  had  as  good 
right  to  it,  they  said,  as  any  thing  they  had  took  already : and  so 
they  had) ; they  were  going  to  ride  atop  of  it  back  into  New-Hamp- 
shire  again  : and  if  any  body  wanted  them  to,  through  the  whole 
length  of  the  streets  of  Portsmouth,  to  the  church  at  the  other  end  : 
the  terminus  fixed  by  law:  having  gone  out  of  the  way,  then,  sev- 
eral miles  out  of  some  fifteen  of  level  country,  or  thereabout,  to  the 


Church.  This  Iasi  is  net  material : the}'  did  now  put  it  on  the  ground 
of  <ii,  ic;Ky  of  accomplishing;  vvh.it:  the  act  told  them  to  : of  which  they 
hud  no  survey,  k v.Vui  intimated  (This  is  the  substance  cl  lha  argument: 

1 am  not  attacking  tv, a cc:  poivvdon  or  their  agent- ; i only  wish  to  have, 
what  our  court  of  equity  thinks  law,  well  understood,  that  the;/  may  not 
)ui  led  a|  then  >rati  ns)  j 

4'  Your  act  of  incorpor  ation  does  not  tell  you  to  .vo  to  the  Church  by  the 
way  of  Winnipisauky  and  back • Damn  the  act:  vou  put  that  in,  some 
of  you:  we  will  go  where  we  please  s”  “ hut  ;”  it  was  said  : 54  Any  body 
can  take  advantage  of  you,  you  cannot  obstruct  the  highways  of  the 
State:  you  will  heat  every  body’s  mercy  wherever  you  go:”  “.Damn  the 
State : we  will  make  the  General  Court  give  us  another  act  to  build  it 
there,  then,  after  it  is  built ; they  cannot  refuse  it  after  we  have  spent 
four  hundred  thousand  dollars  on  it  ; owe  for  the  damages;  and  have 
been  carrying  passengers  over  it  six  months:  why,  cur  creditors  that 
lent  us  the  money  to  build  it  with,  and  the  owners  of  the  railway,  that 
do  not  know  they  are  in  danger,  would  keep  off  that : the  pufoliek  will 
be  impatient  to  use  the  mb  way : it  would  be  an  outrage  to  them  and  in- 
human to  ail  to  refuse  a charter  to  a rod  way  that  is  built : if  we  wait  till 
we  get  the  charter,  you  wd:  give  11s  the  same  cursed  trouble  you  did  be- 
fore : the  only  way  to  be  rwro  of  a charter  where  you  want  it,  is  to  build 
your  railway  there  first : we  have  the  ablest  counsel  (so  they  had) : the 
courts  are  with  us  (so  they  were  too) : if  one  of  those  farmers  you  are 
setting  on  us,  bo  bol  enough  to  try  it,  we  will  show  him  what  it  is  to 
take  hold  of  a corporation,  pledged  to  effect  schemes  to  near  five  millions 
of  dollars  already,  in  a suit  at  law : we  will  bring  an  action  against  him 
for  the  loss  of  time  or1  the  whole  railway:  we  can  ruin  every  one  of  them 
without  minding:  it : he  cannot  last  out  a lawsuit  with  us:  if  he  stop  us 
now  by  a proceeding  in  equity  ; we  will  get  a decree  in  chancery  next 
year  against  him  (this  law,  one  would  suppose,  mar  t have  come  from 
nobody  but  the  court  itself;  this  and  44  trespassers  ab  initio”  are  twins); 
and  make  him  pay  us  for  keeping  us  from  carrying  passengers,  the  nine 
months  here,  before  we  get  our  charter.”  Such  luminous  views  of  the 
law  of  the  land,  and  so  sound,  were  taken  no  peremptory  exception  to  : 
the  gentleman  above-named  asked  the  Chief  Justice  to  stop  them  : till 
the  thing  could  be  argued  he  instantly  did.  His  house  was  a right  angle 
to  the  Church : the  farthest  and  most  expensive  part  of  the  whole  track, 
picked  out  of  purpose  to  attack  the  General  Court’s  humanity  next  year. 
They  were  not  then  sure  of  the  law  : they  would  have  rather  paid  him, 
twice  over,  lor  his  three  hundred  acres,  ihan  be  stopped  there:  and  every 
body  else  they  feared  would  take  the  lield:  they  called  from  every  quar- 
ter whatever  could  bond  or  frighten  him.  Amazed  at  having  touched  off 
such  a magazine  ; frightened  at  his  own  success  ; and  hardly  believing 
his  eyes,  as  the  old  horses  stood  stkf,  wondering  where  was  the  scourge, 
and  the  accustomed  shouts  of  their  friends  from  Tipperary  and  Ros- 
common, who  stood  around  resting  on  their  spades,  as  soon  as  the  mys- 
terious tab-man  of  the  Chief  Justice  took  effect;  and  softened  by  such 
hard-wrung  *ears  in  eyes  he  never  saw  wet  before  : his  compassion  sur- 


36 


rendered  after  a parley  of  forty-eight  hours.  Mephistopheles,  they  said, 
was  now  down  in  his  turn.  Others  however  took  the  field.  “ Do  you 
gravely  hold,”  said  he,  “ that  this  act  means  you  to  wander  about  where 
you  please,  and,  after  you  have  been  in  another  State,  to  come  back  to 
the  ending-place  fixed  by  law.  One  charter,  then,  will  do  for  all  the 
railways  ever  to  be.  What  is  to  keep  the  other  railways  from  running 
over  your  track?”  “we  do  not  mean  to  go  to  the  Church  at  all:  we  are  not 
obliged  to  go  there.”  “ Well : but  is  it  not  in  the  act?”  “ It  is  not  in 
the  act : you  made  the  General  Court  put  it  in.”  As  to  his  making  the 
General  Court  put  any  thing  into  an  act ; it  can  answer  for  itself:  if  the 
court  thought  he  did  ; they  should  have  asked  him  what  it  meant : not 
taken,  his  making  the  General  Court  put  any  thing  into  an  act,  for  proof 
that  it  was  not  in  it.  Somebody  else  asked  an  associate  justice  to  stop 
them  : the  precedent  was  to  settle  the  law,  it  seems,  for  our  court  instantly 
took  occasion  to  tell  us  what  it  is,  as  we  have  seen  : Every  body  hung 
on  the  words,  wisdom  herself  was  going  to  speak  : He,  of  course,  ex- 
hausted his  great  powers  on  the  problem  : notwithstanding  the  advan- 
tage he  possessed  of  being  president  or  director  of  a railway  himself, 
they  failed  to  solve  it : it  was  solved  by  the  “ High  Court  of  Chancery 
of  the  realm,  immediately  representing  the  Crown ; guardian  of  her 
majesty’s  infants,  idiots  and  lunaticks  ; one  of  her  privy  counsellors  ; 
speaker  of  her  House  of  Lords ; Keeper  of  her  conscience  and  her 
Great  Seals.”  That  determined  that  the  law  was  clear  against  the  peti- 
tioner; but  so  doubtful  that  the  court  could  not  find  out  what  it  was: 
both.  Happening  to  be  taken  by  the  railway,  I suppose,  at  the  flood  ; as 
the  other  took  them  at  the  ebb : one  of  them  did  act : I believe.  One 
of  the  farmers  who  had  implored  them  to  help  him,  put  his  own  cattle 
into  his  field  against  his  door:  This  was  the  very  place  where  the  rail- 
way were  going  to  pass  with  all  their  gravel  for  the  great  marshes : a 
key  of  their  whole  position  : What  followed  ? Why,  there  started  from 
the  earth  five  hundred  gentlemen  from  County  Galway  and  from  County 
Mayo,  from  County  Kilkenny  and  from  County  Kerry,  from  the  bog  of 
Allan  and  the  isles  of  Arran,  with  spades,  picks,  crows  and  shovels  in 
their  good  right  hands ; shouting  in  Irish  ; like  their  Gaulish  brethen  at 
the  Roman  legions  ; “ truci  cantu  clamoribusque  variis  horrendo  cuncta 
compleverant  sono” ; headed,  in  person,  by  the  magistrates  of  the  county, 
the  railway’s  counsel  learned  in  the  law,  the  president  of  the  Piscataqua 
bank  and  the  collector  of  the  customs  for  the  United  States : and,  like 
the  bones  of  the  valley  before  Ezekiel : “ The  breath  came  into  them, 
they  lived  and  stood  up  upon  their  feet,  an  exceeding  great  army.” 
What  became  of  the  prophet,  after  he  summoned  such  a host,  I do  not 
know.  Another  freeholder  armed  his  friends  and  himself,  and  revived 
the  good  old  Norman  fashion  of  trying  a writ  of  right  by  wager  of  Bat- 
tel : What  did  the  railway  do  ? Why  they  paid  him  : at  the  rate  of  two 
thousand  dollars  the  acre  for  a heap  of  gravel,  with  no  other  building 
near  but  the  one  he  was  in  ; and  that  he  moved  there  apurpose.  The 
committee  at  last  reported : generally  about  five  hundred  dollars  the  acre; 
the  railway  paying  more  money  to  get  through  the  sands  and  swamps 


37 


of  Old  Hampton  than  it  cost  to  build  the  road  on  the  same  ground : 
they,  and  the  courts  with  them,  making  a farce  of  the  law ; unsettling  the 
tenures  of  property  by  the  doctrines  they  put  forth  more  than  by  any 
occurrence  since  the  American  war ; forcing  a sentiment  of  hatred  to 
such  corporations  upon  respectable  people  by  their  unutterable  folly, 
that  has  affected  the  safety  of  corporate  property  in  New-Hampshire  for 
fifty  years  : aggravating  their  own  ultimate  expenses  between  the  North 
banks  of  the  rivers  Merrimack  and  Piscataqua,  in  consequence,  to  a se- 
rious extent:  making  a political  thing  of  it,  of  their  own  accord,  and  giv- 
ing the  opposite  party  five  hundred  majority  in  a district  doubtful  before, 
and  turning  one  town  to  the  other  side  that  had  been  on  their  own  from 
before  the  memory  of  man ; at  last,  winding  up  with  a quarrel  with 
those  that  led  them  on,  and  swearing  they  were  jockeyed  themselves. 
I must  pick  some  flowers  off  its  banks:  1 will  get  again  into  the  great 
river  of  the  law : which  I expected  to  find  so  broad  and  full : but  where 
our  courts  found  so  many  sands!  and  rocks  the  [stream  so  narrow  and 
crooked  : and  the  water  so  low. 

On  the  whole  it  seems  to  me  clear:  That  this  railway  had  no  right  to 
take  land  or  any  thing  else  against  the  will  of  its  owner  till  the  damages 
were  assessed  by  a Jury  and  were  paid ; let  the  statute  have  been  what 
it  may : nor  can  the  General  Court  ever  give  such  a right,  except  it 
absolute  assure  the  owner  by  statute,  that  the  State  contracts  with  him 
herself  to  pay  such:  That  they  had  no  right  to  do  it,  by  the  statute  itself 
interpreted  to  a lawful  statute:  and  then,  not  till  they  were  assessed  in 
the  way  clearly  set  forth  in  the  act:  And  that  in  thus  wilfully  deviating 
from  the  course  prescribed  by  the  State,  and  breaking  or  eluding  the 
State’s  own  agreement,  or  as  the  Englishmen  have  it,  contract,  with  all 
persons  whatever  to  be  affected  by  their  proceedings,  expressed  in  their 
act  of  incorporation:  They  were  not  only  in  the  act  of  setting  up  a nui- 
sance,both  publick  and  private;  but  engaged  in  a breach  of  the  law  (how- 
ever ludicrous  in  story),  which  suffered  as  a precedent, overthrows  every 
tenure  of  property,  more  especially  their  own,  known  to  the  law : And  ; 
that,  though  they  were  liable  to  be  stopped  in  various  ways,  the  most 
direct  way  to  do  it,  and  thoroughly  consistent  with  the  customs  of  such 
a court,  was  by  an  injunction  from  a court  of  chancery : That,  as  the 
owner’s  right  was  undisputed,  except  so  far  as  it  conflicted  with  this  new 
right  resting  upon  a statute ; if  there  were  any  doubts  as  to  the  com- 
pleteness of  the  last  right ; the  owner’s  right  was  still  complete  in  law : 
and ; That,  till  that  question  was  set  at  rest  by  the  Lord  Chancellor  him- 
self, the  last  should  have  issued  his  injunction  in  his  favour ; or  to  the 
next  hearing  after  its  being  set  at  rest  by  a court  of  common  law.  The 
not  issuing  it,  however,  might  have  been  defended  in  some  degree  : but 
the  court  has  volunteered  what  is  no  defence  ; and  troubled  itself  to  tell 
the  world  the  law  without  being  asked  to  : in  doing  which  they  usher 
such  doctrines  into  the  world  about  these  private  corporations  and  the 
right  of  the  General  Court  to  give  them  unlimited  powers;  that  to  over- 
look such  constitutional  law  and  interpretation  of  statutes  is  wrong. 
Let  us  see,  however,  if  the  court  had  the  power. 


I do  not  profess  much  acquaintance  with  the  history  of  courts  of  equity 
in  the  States : 1 believe  that  they  have  generally  followed  the  steady 
stream  of  registered.  English  precedent,  arrogating  a little  more  width 
of  discretion  than  would  he  willingly  tolerated  there,  though  this  is  not 
so  taken  hold  of  by  the  pub!ick,from  the  contractedness  of  their  --spheres: 
and  that,  in  them  on  the  whole,  the  law  of  equity  has  been  admirably 
administered.  What  the  jurisdiction  of  the  others  may  be  though  is  not 
material:  for,  as  1 read  it,  New-Hampsbire  has  magnanimously  bestowed 
on  hers,  pretty  much,  the  full  assemblage  of  authority,  which  is  found 
:n  the  Lord  Chancellor  of  England.  Whoever  drafted  the  statute  has 
been  careful  to  put,  safe  just  in  the  middle  of  an  array,  behind  and  before, 
of  single  and  distinctly  described  employments  of  this  great  authority, 
filling  a page,  four  little  general  words,  which  might  have  been  in  more 
danger  at  the  outposts  of  the  grand  army:  among  the  far-stretching  files 
of  his  bayonets,  we  can  still  get  sight  of  the  little  cocked  hat  of  the  Em- 
perour  in  the  midst  of  his  soldiers : he  has  also  been  careful  to  register 
for  him  the  full  use  of  the  writ  of  injunction.  What  she  gave  all  this  for 
I do  not  know : his  pure  equity  power  can  do  no  good  to  a people  so 
shrewd  and  watchful,  so  free  to  cavil  and  so  hard  to  bind.  But  some  of 
the  powers  of  his  court  are,  in  the  business  of  life,  as  well  as  a court  of 
law,  not.  to  be  done  without ; not  only  to  help  out  what  the  common  law, 
or  some  law, ought  to  do,  but  which  it  does  not  originally  mean  nor  profess 
to  do ; but  to  help  out  its  doing  what  it  does  mean  to  do  where  it  be- 
longs : for,  had  no  Lord  Chancellor  ever  subsisted,  they  must  have  been 
found  in  the  hands  of  a court  of  common  law.  Be  that  as  it  may:  these 
powers  are  here  in  the  hands  of  our  court  of  equity:  and  in  this  stage 
of  its  growth  equity  must  give,  on  every  question  it  is  called  on  to  deter- 
mine, a complete  investigation  of  our  common  law;  our  statute  law; 
and  a laborious  examination  of  what  each  question  is  in  itself : lor  not 
doing,  where  a court  is  concerned,  is  pretty  much  the  same  thing  as 
doing : in  law.  In  such  cases  as  this : it  can  lean  little  for  assistance  on 
English  precedent;  for  an  English  statute  and  one  of  ours  are  so  oppo- 
site in  nature,  that  it  is  folly  to  attempt  it.  But  its  precedents, it  registers 
at  this  period,  are  of  serious  import : for  it  is  itself  that  is,|through  them, 
to  let  us  know  the  orbit  of  a power,  which,  through  a vast  range  of  human 
rights,  though  it  look  so  quiet,  is  to  be  beyond  control.  It  must  fix  irrev- 
ocably where  its  tremendous  wheel  is  going  to  revolve.  It  must  let  us 
know  where  to  stand  to  get  out  of  its  way.  No  awkward  rior  unsteady 
hand  must  have  hold  of  it  till  this  be  done.  Where  a Chancellor  is  to 
strike  or  spare  we  have  a right  to  be  told.  He  is  not  to  let  us  pass  the 
same  spot  in  the  forest,  safely  fifty  times  a day,  where  he  lies  hid;  to  find 
ourselves  there,  all  at  once,  with  our  bones  cracking  in  the  folds  of  the 
anaconda,  that  has  been  watching  in  the  trees  the  whole  while.  Me 
must  give  us  something  to  guess  by,  what  he  is  to  do : and  this  must  be 
precedents  he  means  to  keep  ; as  much  as  a court  of  common  law:  more; 
for  its  expansive  drift  is  the  essence  of  his  court : and  from  it  there  is  no 
appeal,  I concede  that  there  is  often  just  cause  for  doubts  what  he 
shall  do:  contrary  to  the  usual  course,  1 wrote  this  letter  myself  first  and 


39 


looked  into  the  books  afterward  ; about  his  equity  obligations : but  had 
to  make  up  my  mind  to  let  the  first  draft  stay  as  it  was  : satisfied  that 
there  was  no  shadow  of  doubt  that  the  law  was  what  1 at  first  supposed 
it : that  the  only  question  was,  whether  the  Chancellor  should  stop 
them,  or  tell  the  man  to  do  it  himself.  In  this  part  of  a Chan- 
cellor’s jurisdiction,  he  will  find  it  hard  to  keep  off  complete  decis- 
ions, and  refuse  redress  from  the  confused  doubts  of  his  own  mind : for 
what,  mostly,  he  has  any  right  to  give  license  to,  he  may  be  called  upon 
to  see  that  it  is  not  resisted : what  he  has  no  right  to  prevent,  we  can 
make  him  enforce.  Interpretation^  of  statutes  he  must  make  on  the 
strictest  precedents  and  principles  of  the  common  law.  He  is  always 
dealing  with  artificial  rights  established  already  with  accurate  and  un- 
changeable exactness  by  statutes  or  the  common  law.  Can  our  Lord 
Chancellor  reluse  to  prevent,  what  is  an  injury  by  statutes  or  the  com- 
mon law,  but  cognizable  by  a court  of  equity,  because  there  is  no  suffi- 
cient power  to  do  it  elsewhere,  or  simply  from  custom,  for  it  is  not  true 
that  a sufferer  can  never  show  his  face  in  a court  of  equity,  that  has  any 
remedy  at  common  law,  not  even  if  he  have  a complete  one;  till  he  have 
time  given  him  to  find  out,  long  after  the  injury  is  irrevocable,  whether 
it  would  not  bring  too  many  such  people  into  his  court,  to  prevent  it? 
Unquestionably  he  cannot.  His  high  power,  through  his  writ  of  injunc- 
tion, fills  a chasm  which  would  have  been  filled  in  England,  long  before 
now,  by  statute,  had  no  court  of  chancery  subsisted : and  here  it  is 
wanted,  from  various  reasons,  ten  times  as  much  as  there : it  is  not  in 
his  hands,  there,  because  he  is  a court  of  equity:  but  simply,  as  every 
body  knows,  because  from  accidental  historick  circumstances  it  is  found 
in  a Chancellor’s  hands  and  has  been  suffered  to  abide  there  : others 
have  agreed  to  go  without  it,  because  he  keeps  it  for  them : it  is  not 
essentially  an  equity  power ; it  rests  on  completely  different  and  oppo- 
site principles.  Or,  at  another  time : somebody  asks  the  Chancellor  to 
make  somebody  tell,  what  he  has  a right  to  have  found  out,  but  nobody, 
owing  to  ineradicable,  arbitrary  law,  can  make  him  but  the  Chancellor : 
though  the  fulfilment  of  his  prayer  is  contrary  to  every  custom  of  the 
common  law ; is  he  to  grant  it,  or  refuse  to  grant  it,  on  principles  which 
in  nature  distinguish  his  court  from  a court  of  common  law  ? He  may 
have  wider  discretion  than  before;  or  he  may  not:  but  he  should  have 
little  in  either:  for  his  granting  can  seldom  do  much  harm:  his  refusing 
may  a great  deal.  Circumstances  again  have  kept  for  him  a power 
which  nobody  else  has  : but  which  other  people  would  have  had  ; and 
they  must  have  it,  if  he  be  to  use  it  as  a moral  tool,  in  place  of  a cus- 
tomary link  in  the  business  of  the  law.  When  this  purpose  is  effected : 
The  same  asks  him  to  decide  a vital  question,  and  enforces  his  request 
through  what  has  been  discovered  by  this  process.  Now:  though  still 
governed  by  a set,  not  only  of  abstract, $but  of  most  arbitrary  rules,  or 
professing  to  he,  for  they  have  repeatedly  changed,  but  usually  in  Eng- 
land, it  must  be  acknowledged,  for  the  better,  he  is  more  in  a real  court 
of  equity  : now  he  often  must  take  a responsibility ; before,  very  little  : 
now  he  has  some  width  of  discretion  to  compare,  balance,  raise  disqui- 


40 


sitions,  make  farther  inquiries : and  deny.  And  in  issuing  a perpetual 
injunction,  he  is  in  some  sort  in  this  court  of  equity : surely  not  much 
in  issuing  one  till  the  hearing.  Or  at  this  time  : Somebody  wants  him 
to  prevent  what  must  or  may  be  some  irreparable  injury  or  other:  we 
have  seen  that  Lord  Eldon,  in  the  case  of  deviation,  will  not  trouble 
himself  about  what  it  may  be  : the  necessity  of  showing  real  irreparable 
damage,  may  make  treaties  more  compact,  but  it  is  not  borne  out 
by  decisions ; and  it  would  be  absurd  if  it  were : in  one  large  class,  a 
Chancellor  requires  no  proof  of  more  than  nominal : He  asks  the  Chan- 
cellor to  prevent  what  will  be  an  injury,  if  his  right,  never  impaired  nor 
questioned  before,  be  still  good  and  be  to  continue  good;  till  it  be  proved 
that  it  will  not : and  it  has  not  been  proved  before  the  Chancellor  that 
it  will  not.  Is  he  to  want  time  always  to  hesitate  and  fluctuate  ? To 
determine,  like  our  court,  that  his  right  is  impaired  without  hearing  or 
Trial ; the  very  thing  he  denies  : that  he  does  not  deserve  protection, 
because  it  would  be  useless  to  give  it;  for  he  thinks  from  his  own  pri- 
vate knowledge,  that  the  law  will  take  from  him,  some  time  or  other, 
when  is  uncertain,  the  right  he,  the  Lord  Chancellor,  knows  he  has  now? 
Unquestionably,  he  is  assuming  a power  of  a very  dangerous  nature : it 
must  end,  here  or  any  where  else,  in  breaking  up  his  court.  His  refus- 
ing is  near  about  the  same  effort  of  power  as  giving.  He  must  put  an 
end  to  all  farther  prosecution  of  the  injury  till  the  right  be  determined 
by  himself  or  by  a court  or  jury  at  common  law.  The  writ  of  injunction 
the  owner  had  a right  to  look  for:  though  English  precedents  are  few 
that  meet  his  case.  Of  course  they  are  few : this  gives  more,  not  less, 
obligation  to  the  court  to  determine  it:  a wilful  deviation  from  the 
course  prescribed  in  the  act  few  such  corporations  would,  there,  dare  to 
attempt : we  have  seen  what  they  say  when  they  do  (this  question 
would  have  been  best  debated  on  a bill  from  the  dissatisfied  members 
of  the  corporation  ; which  on  investigation  must  have  been  sustained  by 
the  court;  for  they  could  not  help  it):  And,  as  to  the  lawfulness  of  the 
statute  itself  or  the  doubts  as  to  its  interpretation,  such  things  in  Eng- 
land have  little  place : the  first  none  ; and  their  acts  are  so  well  drafted 
now,  that  he  can  seldom  doubt  their  meaning:  if  he  do  ; he  has  the 
court  of  Queen’s  Bench  to  assist  him,  and  the  decision  of  the  Lords  on 
the  law.  I do  not  profess  to  comprehend,  how  a Chancellor  can  help, 
here,  the  original  estate  and  some  damage  being  both  conceded  (except 
he  tell  a long  story  about  filing,  to  be  sure,  bonds  in  his  court  and  the 
silver  and  gold,  which  no  statute  tells  anything  about  this  corporation’s 
doing,  and  every  body  else  would  have  as  good  a right  to,  that  wanted 
to  make  people  sell);  how  he  can  help  bringing  the  full  examination  of 
the  statute,  and  its  bearings  upon  the  law,  and  upon  the  business  in 
hand,  in  every  way,  into  his  court ; without  he  get  it  tried  elsewhere  if 
he  please : that  he  can  do  here  : The  owner’s  right  is  completely  good 
till  this  be  done.  If  the  Chancellor’s  mind  be  not  satisfied  that  what  is 
doing  agrees  with  the  statute,  and  the  statute  with  the  law : who  so  fit 
to  keep  off  aggression  till  it  be  : as  himself?  Is  our  court,  after  getting 
up  their  court  of  equity  themselves,  to  establish  the  doctrine  that  when 


/ 


41 


* a company  of  adventurers,”  so  says  the  Chief  Justice  of  the  court  of 
King’s  Bench,  is  about  to  drive  a person  off  his  land,  if  the  owner’s  right 
be  good  in  law  and  theirs  be  not ; or  it  be  doubtful  whether  theirs  be  or 
not ; or  whether  they  will  be  bankrupt  or  no  before  they  pay  for  it ; of 
which  the  law  can  know  nothing;  for  it  cannot  tell  how  much  they  will 
have  to  pay  till  the  Jury  tell  ; and  the  State  say  she  shall  not  pay  for  it : 
and  so  on  to  the  end  of  the  chapter:  that  he  has  no  business  to  show  his 
face  in  a court  of  equity  ? 1 am  only  playing  with  the  fish  in  doubting 

whether  the  force  of  a statute  can  he  discovered,  usually,  in  this  way  as 
soon  as  another:  reason  teaches  us  that  such  a right  as  to  build  a rail- 
way over  grounds,  under  houses,  churches  and  churchyards, across  roads 
and  great  rivers,  against  all  opposition,  or  to  stop  a railway  earning  sev- 
eral hundred  thousand  dollars  a year,  is  not  to  be  left  floating  about;  we 
must  have  a precedent  to  tell  us  what  it  is:  and  it  must  be  enforced  one 
way  or  the  other.  If  our  Lord  Chancellor  be  not  under  obligation  to 
protect  the  man  that  resists,  he  will  be  asked  to  put  down,  perhaps,  his 
resistance  : and  after  being  chased  round  the  tree  to  get  off  from  doing 
this  very  thing,  he  must  at  last  get  collared,  and  resolutely  and  absolutely 
determine  what  the  rights  are  which  rest  on  nothing  but  the  statute  : 
he  did  not,  here,  get  off,  as  he  tried  to,  from  saying  whether  the  railway’s 
right  was  indisputable : he  did,  for  all  practical  purposes,  decide  that  it 
was:  had  they  turned  round  and  asked  for  an  injunction  to  keep  one  of 
the  same  owners  from  building  a house  where  they  chose  to  select  their 
ground,  he  must  have  issued  it  till  farther  hearing : or  told  them  to 
drive  the  others  off.  And  as  I understand  the  drift  of  the  whole:  nobody 
can  in  any  way  obstruct  the  proceedings  of  these  peculiar  corporations 
without  incurring  the  risk  of  paying  for  their  whole  loss  of  time  on  the 
whole  road.  Consequently,  nobody  will  ever  attempt  it : and,  with  any 
sort  of  excuse  for  a charter,  their  power,  in  practice,  is  neither  moi;e  nor 
less  than  absolutely  superiour  to  all  opposition,  remonstrance  or  justice 
whatever. 

As  to  these  writs  of  injunction  again  : I will  not  say  equity  is  installed 
as  chancellor,  to  keep  as  a mother  all  her  children  from  hurting  each 
other  at  all : nor  will  I look  up  English  authorities  to  show  what  they 
are.  Sir  Edward  Coke,  the  first  gun  usually  fired  as  a signal  of  battle, 
nor  Ellesmere  with  him,  will  I summon  up  to  see  another  row  with  a 
Chancellor  or  hear  him  instructed  : Coke  and  Egerton,  their  quarrels 
over,  may  rest  in  peace  for  me.  Neither  will  I mount  our  own  Papinian, 
who  stands  ready  bridled  and  saddled  to  my  hand  : he  would  carry  me 
like  oil  over  this  ground.  Fair  colours  and  bounteously  bestowed  he 
puts  on  : the  old  lady  looks  well  in  her  rouge.  I will  not  be  too  munifi- 
cent in  my  dispensations  of  equity  to  a court  of  chancery.  A tribunal 
to  busy  itself  about  the  fraud,  accident  and  mistake  of  human  contracts, 
is  not  imperatively  required  by  the  habitual  faults  of  every  family  of 
men.  But  the  power  of,  to  some  extent,  making  hopeless  the  attempt  of 
the  strong  to  terrify  the  weak,  is  not  to  be  lightly  relinquished.  This 
most  admirable  prerogative  of  a court  of  chancery  is,  in  nature,  to  some 
extent,  completely  separable  from  one  : and  might,  so  far,  be  given  to  a 

6 


42 


court  of  common  law.  The  writ  we  do  want:  the  court  of  equity  is 
more  doubtful.  It  must  bring  itself  in  from  sheer  necessity.  Our  wise 
Lord  Chancellor  says:  If  “ the  respective  rights  of  the  parties  admit  of 
doubt”;  no  injunction  shall  issue  : he  wilfully  mystifies  what  is  as  plain 
as  day.  The  term  “ doubt”  has  no  business  here,  with  respect  to  either 
party.  He  has  before  him  a subject  of  the  State,  whose  right  is  not  dis- 
puted and  is  still  complete  against  all  the  world  but  a single  aggres- 
sor: the  aggression  is  not  disputed  and  is  supported  by  a simple  statute. 
There  can  be  no  such  thing  as  a “ doubt”  about  either’s  right.  He  is  to 
look  to  nothing  but  what  the  new  right  is ; not  on  any  equitable  dreams : 
but  at  common  law.  If  it  be  not  clear  ; there  is  no  “ doubt”  as  to  the 
other.  Whether  he  choose  to  defend  this  is  another  question : but  he 
is  imperatively  forced  by  law  to  hold  it  good  till  the  other  be  good  in  law. 
If  no  rights  be  clearly  subsisting  at  common  law  from  a statute,  none 
subsist  here  in  a court  of  equity:  he  has  nothing  to  do  with  them.  If 
lie  be  bewildered  by  the  doubtful  right  of  the  railway  or  anybody  else, 
the  owner  is  not  to  suffer  for  that : he  must  issue  his  injunction  till  his 
self-possession  come  back : or  tell  him  he  need  not  come  to  him ; but 
drive  them  off  himself : if  the  railway’s  right  was  not  so  clear  that  they 
could  lawfully  drive  him  off  yet ; he  could  them.  And  where  so  good 
a place  to  find  the  law,  as  the  Lord  Chancellor  and  Chief  Justice  of  the 
State,  in  whose  breast  it  all  lies  so  safe  P This  shows,  what  I might 
have  said  before,  that  this  “ bond”  he  was  so  entranced  by,  and  the  silver 
and  gold  which  revealed  to  the  maiden  palm  of  his  poor  clerk  such 
hitherto  unknown  celestial  thrills,  could  not  have  been  meant  for  a 
chancery  ^uit : for  no  man  of  common  sense,  would  come  back  into  his 
court  of  equity  to  hear  it  discussed  whether  he  ought  to  have  been 
kicked  out  the  year  before  : till,  if  he  wanted  to  go  farther,  he  had  gone 
into  a court  of  common  law,  of  himself,  and  got  his  right  tried:  Then 
he  might  come  back  and  demand  an  injunction  for  good.  The  writ  of 
injunction  does  not  derive  its  value  here  from  its  issuing  from  a court  of 
chancery.  It  is  the  most  complete  substitute  for  actual  force : every 
body  that  helps  to  support  a government  has  a right  to  demand  of  that 
government,  without  using  force  himself,  or  incurring  the  risk  of  ruin, 
defence  at  his  own  pleasure,  instant,  complete,  exact  and  full,  for  all, 
for  every  right,  every  contract,  every  lawful  fancy  that  fills  his  head  : it 
must  give  it  or  it  is  no  longer  a government.  The  Lord  Chancellor  of 
England  issues  his  injunction  to  restrain  from  cutting  down  ornamental 
trees,  or  ploughing  up  a strawberry  bed,  as  readily  as  to  restrain  from 
tearing  down  a palace.  No  law  deliberately  can  mean  to  let  a subject 
be  driven  to  use  force  himself,  or  run  the  risk  of  ruin,  to  defend  his 
rights  ; when  it  knows  they  are  attacked  (it  is  not  to  be  expected,  to  be 
sure,  that  the  owner  should  be  punished  ever  for  resisting  a pretension, 
to  which  a Lord  Chancellor  finds  so  much  “ doubt  and  difficulty,”  that 
he  cannot  tell  what  the  law  is);  but  the  government  itself,  if  his  right 
be  now  doubtful  in  this  way  only,  must  sustain  it  till  his  loss  of  it  be 
proved.  These  private  acts  of  the  General  Court  are  not  to  oust  a sub- 
ject, when  a Lord  Chancellor  and  three  Masters  of  the  Rolls,  a Chief 


Justice  and  three  puisne  Justices,  all  together,  cannot  find  out  whether 
they  have  any  force  and  cannot  tell  him  what  they  mean  ; till  somebody 
can.  The  railway’s  Irish  are  not  the  depositaries  of  our  law  to  deter- 
mine the  question.  It  is  very  clear  that  a court,  that  says  that  the 
aggressor’s  right  is  “ doubtful,”  could  not  hold  anybody  in  the  wrong  lor 
resisting  it,  when  his  own  right  was  agreed  to  be  not  “doubtful.”  against 
the  whole  world  except  this  single  aggressor.  The  mid-day  folly  of  any 
other  doctrines  comes  home,  of  itself,  to  every  man  of  truth  and  sense, 
throughout  the  world.  Hear  the  fourteenth  article  of  the  bill  of  rights: 
“Every  subject  of  this  State  is  entitled  to  a certain  remedy,  by  having 
recourse  to  the  laws,  for  all  injuries  he  may  receive  in  his  person,  prop- 
erty or  character  ; without  being  obliged  to  purchase  it ; completely  and 
without  delay  : et  cetera The  General  Court  never  did  mean  to  keep 
writs  of  injunction  from  being  given  in  doubtful  cases  : the  right  to  be 
determined  afterwards : see  the  statute:  “Said  superiour  court  may 
grant  writs  of  injunction  whenever  the  same  shall  be  necessary  to  pre- 
vent injury  :”  The  chancery  power  of  injunction  is  completely  given,  as 
distinct  from  the  other  powers : “ may”  in  such  places  means  “ must :” 
and  each  separate  Justice  is  given  power  to  issue  one  in  vacation  till 
the  next  term  of  his  court:  by  the  express  words  of  the  statute  : in  Eng- 
land the  Lord  Chancellor  or  Master  of  the  Rolls  can  exercise  his  full 
powers  wherever  he  is : ours  cannot ; but  this  power  is  purposely  given 
each  here  by  statute.  The  issuing  one  till  the  next  term  of  a court  has 
nothing  mysterious  or  frightful  about  it : This  writ  is  to  shackle  these 
corporations ; and  keep  them  from  being  too  breachy  : they  have  been 
found  in  other  people’s  pastures  rather  too  often,  and  have  got  the  name 
of  it  too  well  established;  for  their  master,  the  State,  not  to  get  some 
shackles  ready.  On  the  other  side  of  the  water,  where,  in  the  land- 
holders they  get  hold  of  people  that  can  last  out  law-suits  as  well  as 
they  can  ; it  is  not  so'much  wanted : the  only  reason  it  has  not  been 
much  used. 

I am  disposed  to  believe,  in  fact  1 am  told,  that  I rate  too  low  the  en- 
terprise and  professional  skill  with  which  our  courfof  chancery  has  been 
round  and  sounded  all  the  bays  and  inlets  of  the  coast  of  their  power. 
The  pleasure  of  a straight  coast,  somebody  says,  is  purely  imaginary  : the 
more  broken  and  irregular,  the  more  good  harbors  for  traffick  : and,  he 
might  say,  the  easier  to  defend  against  an  enemy  that'doesnot  know  the 
way  in.  The  extent  of  their  power  has  disincumbered  itself  of  doubt,  I 
believe,  with  respect  to  these  very  questions:  Is  it  true,  amon  g other 
ludicrous  circumstances,  that  a person  who  told  one  of  the  farmers  they 
had  no  right  to  his  land  yet,  was  tracked  after,  as  this  corporation’s  peo- 
ple supposed  without  his  knowledge,  for  proof  to  bring  against  him,  and 
in  one  unknown,  under  the  circumstances,  to  the  English  common  law, 
for  a hundred  years,  an  action  for  stirring  up  suits,  before  a court,  that 
tells  us  that  the  State  means  to  give  us  for  “just  compensation,”  “ the 
ordinary  common  law  remedy  against  trespassers  (!)  ab  initio  against 
all  (!)  concerned  in  the  acts  done  upon  the  land”  P Are  we  going  to 


44 


fetch  her  into  court  too  for  stirring  up  suits?  How  many  is  it,  she 
menus  to  stir  up  ? And  tiie  best  of  it  is:  tiiat  he  puts  the  State  into  a 
more  ridiculous  posture  than  is  necessary,  for  his  own  theory:  for  the 
owner  might  come  into  his  own  court  of  equity  for  an  injunction  and 
an  account;  which  would  look  better:  though  what  good  either  way  would 
do,  1 do  not  know.  Is  it  true,  is  it  not  notorious,  that  the  railway  never 
affected  to  defend  their  proceedings  in  any  way  but  by  purposely  taking 
advantage  of  his  happening  to  have  some  worthless  ground,  straight 
between  two  ending-places  fixed  by  law,  to  swear  that  all  fault  found  by 
everybody  for  twenty  miles  round  was  got  up  by  him  ; and  (flebile 
ludibrium  !)  that  they  meant  to  break  their  statute  of  purpose,  and  carry 
a whole  High  Court  of  Chancery  out.  of  their  way  with  them  on  such 
an  errand,  just  hard  at  work  building  up  by  precedent  the  great  dome 
of  equitable  jurisprudence,  that  is  to  fill  the  air  over  the  heads  of  our 
children,  to  harrass  him  ? But  though  we  can  laugh  at  the  tricks  of  a 
corporation,  mv  learned  friend,  will  it  just  do  to  let  off  our  Lord  High 
Chancellors  with  a jest  ? J have  some  misgiving.  Well  : suppose  the 
same  railway  had  gone  round  and  taken  the  village  of  Concord  under 
this  act:  would  the  court  have  still  assumed  a sweeping  statute  ? How 
could  they  have  helped  it,  except  they  held  the  statute  up  to  their  eyes 
and  read  what  was  in  it;  and  found  out  whether  the  railway  was  where 
it  belonged  ? Must  the  owner’s  counsel,  or  the  owner  himself,  come  to 
show  them  how  to  read  it?  Or  when  a subject’s  house  is  pulling  down 
in  January:  and  he  asks  the  Chancellor  to  help  him  : shall  the  last  an- 
swer that  he  must  let  it  be  pulled  down  now|:  for  the  stranger,  that  is  at 
work  at  it,  is  ready  to  made  oath  that  he  got  in  and  out  of  his  scullery 
one  day,  without  his  wife’s  emptying  the  kettle  over  his  head;  which  is 
constructive  assent  on  his,  the  owner’s,  part  that  the  other  has  got  a copy 
of  a private  act  of  the  New-Hampshire  General  Court  in  his  breeches- 
pocket,  which  he,  the  Chancellor,  has  not  yet  seen  and  does  not  know 
what  there  is  in  it ; but  learns  from  the  stranger  that  he  is  ready  to 
make  oath,  that,  as  he  reads  it,  it  tells  him  take  right  hold  : and  that, 
consequently,  if  he  obstruct  the  stranger’s  operations,  he  must  send  him 
to  jail : but  that,  if  he  insist  upon  it,  he  will  make  the  stranger  let  him 
s 'e  this  act  he  has  in  his  breeohes-pocket  next  June : when  lie,  and  three 
other  Lord  Chancellors  will,  upon  “ full  hearing  and  investigation,” 
which,  if  he  will  come  up  somewhere  a hundred  miles  off,  he  may  have 
the  pleasure  of  witnessing  himself,  determine  whether,  under  this  stat- 
ute, he  was  lawfully,  with  his  wife  and  children,  kicked  out  of  doors  the 
January  before  ? The  court  should  have  stopped  them  till  they  got  thetr 
charter : they  should  have  stopped  them  till  the  damages  were  assessed 
through  a Trial  by  Jury;  and  were  paid  ; go  where  they  would;  under 
the  acts  on  which  rests  this  corporation’s  franchise.  If  the  acts  neglect- 
ed it ; it  was  time  to  tell  the  General  Court  to  neglect  it  no  longer.  It 
is  notorious  that  the  State  does  not  assume  these  debts  for  her  own  : 
there  is  the  bill  of  rights ; and  it  has  not  been  altered.  However  the 
court  stanchly  defends  itself  by  saying  there  was  no  hurry:  there  was 
to  be  “ full  hearing  and  investigation”  the  next  summer  : tick  once  more; 


45 


it  is  all  tick.  Telling  the  sufferer,  that  the  right  of  the  aggressors  to 
kick  him  out,  shall  be  subject  to  “full  hearing  and  investigation”  the 
next  year ; but  that  in  the  mean  time  he  shall  go  to  jail  if  he  says  a 
word  : is  a fit  companion  for  the  “ tick  for  a statute.”  1 When  this  injunc- 
tion was  prayed  for,  or  rather  the  injunctions,  for  the  court  tells  us  they 
were  innumerable,  and  all  of  them  considered  as  one  ; this  corporation’s 
franchise  gave  it  no  right  to  put  a railway  in  them,  or  on  them,  or  under 
them,  or  over  them  ; their  lands  against  their  will. 

People  in  the  profession  should  take  up  the  cudgels, my  learned  friend, 
not  I : it  was  not  from  want  of  having  heard  that  it  is  a bad  thing  to  be 
caught  in  a row  without  wanting  to  put  down  completely  either  party 
engaged  in  it  (I  am  no  enemy  to  these  corporations  if  their  powers  he 
kept  within  the  limits  of  what  they  are  in  law),  that  1 censured  the  pro- 
ceedings of  this  corporation  : which,  in  themselves,  are  of  little  moment: 
but  such  doctrines  as  our  courts  hold  in  respect  of  them  are  enough  to 
wake  anybody  up  : lawyer  or  anything  else.  They  are, in  law,  incapable 
of  defence:  they  are  at  war  with  every  principle  of  justice  : they  are 
ruinous  in  policy  to  the  people  that  praise  them  : and  they  set  up,  the 
worst  of  all  governments,  an  irresponsible,  meddling  legislative  power: 
led,  one  day,  by  the  craft  of  the  cunning  or  the  rich  ; to  be  the  tool,  to- 
morrow, of  the  retaliation  of  the  cheated  and  the  envy  of  the  poor.  These 
corporations,  of  every  sort,  have  a strange  notion  of  their  own  interests, 
if  they  think  they  shall  gain  by  letting  any  be  looked  on,  in  law,  as  this 
sort  every  where  wants  to  be  looked  on.  The  confusion  of  their  own 
franchises  would  put  it  in  the  hands  of  each  State’s  legislature  to  make 
it  impossible  to  find  out,  who  owned  any  thing  : or  for  any  body  to  re- 
cover any  thing  for  what  he  is  stripped  of.  A very  limited  purse,  scien- 
tifically spent  in  this  very  State  in  the  county  of  Strafford,  would  make 
useless,  half  the  year,  every  mill  on  the  river  Merrimack,  from  its  source 
to  the  sea  ; and  laugh  at  the  dream  of  a dozen  future  cities:  with  a fran- 
chise, interpreted  by  this  opinion  of  our  worthy  Lord  Chancellor,  a 
single  person,  by  getting  a certain  charter,  without  notice  to  the  world, 
without  being  tied  to  some  strict  interpretation  of  his  act,  could  extort 
millions : they  could  not  prevent  him  ; the  courts  could  not  take  back 
their  law;  nor  the  General  Court  its  grant.  Are  the  men,  ready  to  do 
such  things,  so  scarce  in  New-England,  that  their  ingenuity  wants  to  be 
stimulated  by  the  offer  of  spoil  ? The  hoards  of  the  rich  and  the  earnings 
of  thousands  of  the  poor,  will  rest  on  a statute.  What  is  a statute  worth 
with  a careless,  vascillating  legislative  and  judicial  power?  Nothing. 
The  court  of  the  United  States  is  not  to  always  interfere  to  save  : they 
are  tired  already.  The  system  of  innumerable  private  corporations  for 
purposes  of  a public  nature,  I have  not  to  consider.  That  it  could  be  well 
dispensed  with  I do  not  know  : that  it  is  not  like  to  be  I do.  These 
United  States  have  told  the  world,  to  be  sure,  they  were  going  to  solve 
the  problem,  so  many  have  tried  to  and  nobody  has,  to  keep  each  of  us 
equal  in  political  power  to  the  other : but  they  have  not  gone  so  far  as 
to  mean  that  each  of  us  should  build  his  canals  and  railways  for  himself: 
and  everybody  knows  we  are  not  the  people  to  sit  still  and  agree  not  to 


46 


rw 


be  envied  : that  every  such  thing  we  shall  attempt,  that  can  be  devised  ; 
and  that  skill, industry  and  money  can  bring  to  passive  shall  execute.  The 
usually  predominant  party  of  the  United  States  says  that  their  general 
government  should  not  attempt  them  ; and  most  justly : they  say  their 
State-governments  should  not;  perhaps  with  truth  : Then  this  growing 
empire  is  to  be  arched  over  by  the  works  of  these  corporations.  If  they 
be  to  have  a hand  in  building  the  publick  works  of  the  United  States  ; 
if  they  be  to  do  all  that  single  persons  cannot ; or  a tenth  of  it : the  law 
of  their  tenures  will  be  a serious  matter.  Are  they  to  do  what  this 
country  calls  for:  and  keep  pace  with  the  wealth  there  is  like  to  be  in  it? 
Wealth  is  it  ? Why,  some  time  or  other,  this  is  to  be  Mammon’s  chosen 
field.  The  temptation  and  the  ready  to  be  tempted  are  both  here  : such 
real  natural  wealth  as  these  United  States  contain  is  not  elsewhere 
known  ; so  much  of  all : and  whom  is  this  temptation  set  before  ? A 
people  restless,  ingenious ; but  as  lasting  and  sure  as  they  are  daring  and 
vain  : fifty  millions  of  them,  in  fifty  years,  must  inhabit  but  not  fill  these 
States  : their  genius  is  of  the  first  order ; their  resources  are  absolutely 
boundless  : they  are  thrown  at  the  feet  of  European  civilization  in  its 
palmiest  day;  with  Europe’s  own  progress  and  every  convulsion  to  help: 
To  canal  it  and  railway  it  and  bridge  and  dam  it ; is  the  catechism  of 
this  magnificent  region,  where  a new  faith,  more  intolerant  than  Mo- 
hammed’s, that  of  Utilitarianism,  is  to  triumph  undisturbed.  There  is 
the  field  God  has  thrown  open  to  work  in : its  vastness  and  richness 
reach  to  the  awful:  and  it  will  be  worked  with  the  undying  efforts  of 
that  passion  for  adventure  and  thirst  of  gain  which  nothing  but  death 
ever  yet  quenched  in  a Yankee’s  heart:  which  laughs  at  labours  and 
dangers,  at  delays  and  reverses,  with  a sublime  heathen  heroism  worthy 
of  a better  object.  If  these  private  corporations  be  to  do  a tenth,  and 
they  are  like  to  do  in  the  end  almost  all,  that  we  mean  to  do,  besides 
ploughing  the  ground : the  wealth  of  thousauds  upon  thousands  will 
rest  on  a statute.  Their  franchises  will  overtop  the  interests  of  single 
persons  ; but  they  will  not  each  others’ : neither  is  to  set  up  too  high 
the  way  to  keep  still  the  rage  to  pull  down.  They  will  be  always  mak- 
ing and  unmaking  in  legislatures  and  contesting  in  courts.  They  are 
deeply  concerned  that  the  power,  that  creates  and  destroys  them, should 
not  be  careless : that  the  rights,  it  alone  can  give,  should  rest  on  re- 
spected laws  : and  to  bind  it  in  the  chains  of  habit : “ Komm,  lies  es 
selbst  in  dem  Planetenstand”  “ Dass  Ungiuck  dir  von  falschen  Freund- 
en  droht.” 

They  will  gain  nothing  by  confusing  people’s  ideas  about  publick  and 
private  property:  the  publick  may  get  to  think,  at  last,  they  may  do  as 
they  please,  with  what  they  are  half-told  is  their  own.  The  other  doctrine 
is  the  true  one : the  simplest  and  least  complicated  in  law:  the  straightest 
in  practice : the  justest  to  others  and  the  safest  to  themselves.  They 
are  thorougly  private  interests  : the  public  good’s  creating  them  Eng- 
land looks  on  as  one  of  her  fictions  of  law : like  the  debt  to  her  king  in 
his  court  of  Exchequer;  now,  l believe, exploded  by  statute : It  is  best, 
for  themselves  as  every  body  else,  that  they  should  be  looked  on  as  such 


47 


by  the  legislative  and  judicial  power.  There  they  are  incorporated  to 
take  land  against  the  owner’s  will  as  much  as  here : they  are  not  incor- 
porated, without  every  body’s  being  heard  that  t wants  to  be,  or  against 
determined  opposition.  The  shifting  estates  without  any  notice  at  all ; 
the  giving  them  a whole  country  to  pick  at  pleasure,  after  they  are  char- 
tered instead  of  before  ; is  pure  violence.  When  a charter  is  asked  for : 
let  the  right  of  survey  be  given  ; to  be.  used  without  insult,  and  the  dam- 
ages of  it,  if  any,  be  assured  by  the  State  : let  there  be  notice  given  to 
each  town  : Jet  there  be,  the  next  session  after  all  this,  a clear  and  pre- 
cise map  of  their  projected  course,  laid  before  the  legislative  power : 
let  all  people,  where  it  is  to  be,  be  fairly  heard  ; they  surely  should  be  : 
let  the  Trial  by  Jury  be  prescribed  in  the  act ; how  and  when  : it  must 
be : and  the  damages  be  paid  first  or  they  must  be  assumed  by  the  State 
for  her  own  : Then,  if  the  owners  will  hold  out,  the  State  will  use  its 
high  prerogative  as  it  thinks  best.  With  such  accordance  to  the  law  of 
ihe  land,  and  our  principles  of  government ; which  it  lies  not  with  the 
General  Court,  or  other  courts,  or  railway-companys  to  alter  : few  will 
obstruct  their  well-meant  schemes,  and  few,  except  among  their  own 
tribe,  will  envy  the  deserved  success  of  every  one  of  them. 

1 have  the  honour 
To  remain, 

My  learned  friend, 

Your  obedient  servant, 


A FARMER. 


' 

" ■■  ■ . 


. 

- 


* 


